Commonwealth v. Flor, R., Aplt.

[J-91-2015]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA, : No. 708 CAP

:

Appellee : Appeal from the Order entered on June

: 22, 2015 in the Court of Common Pleas,

: Bucks County, Criminal Division at No.

v. : CP-09-CR-0006917-2005

:

: SUBMITTED: January 20, 2016

ROBERT ANTHONY FLOR, :

:

Appellant :

OPINION

JUSTICE WECHT DECIDED: April 25, 2016

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

1

42 Pa.C.S. §§ 9541-46 (“PCRA”).

2

Commonwealth’s Motion for Production of Documents (hereinafter,

“Commonwealth’s Motion”) at ¶ 13.

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, 32 A.3d 243 (Pa. 2011).

Accordingly, we vacate the discovery order, and we remand for immediate inspection of

the file consistent with this Opinion.

I. Background

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

3

See Commonwealth v. Flor, 998 A.2d 606 (Pa. 2010) (providing the factual

background of Flor’s crimes and resolving Flor’s direct appeal). The essential events

were as follows: As Officer Gregg and Newtown Borough Police Officer James

Warunek escorted Flor into the lavatory at St. Mary Medical Center to provide blood and

urine samples, Flor disarmed Officer Warunek and used his weapon to shoot Officer

Warunek, Officer Gregg, and Joseph Epp, an emergency medical technician on duty in

the emergency room. Officer Gregg died as a result.

[J-91-2015] - 2

sentence. Commonwealth v. Flor, 998 A.2d 606 (Pa. 2010), cert. denied, 563 U.S. 941

(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 (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

4

On July 1, 2013, Flor filed an appendix in support of his amended PCRA petition,

adding affidavits from trial counsel regarding their representation of him during the plea

and penalty phases, and concerning their investigation and preparation for trial.

[J-91-2015] - 3

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

5

See Commonwealth v. Chmiel, 738 A.2d 406, 423 (Pa. 1999) (explaining that,

with respect to attorney-client privilege, “all confidential communications and

disclosures, made by a client to his legal adviser for the purpose of obtaining his

professional aid or advice, shall be strictly privileged;—that the attorney shall not be . . .

compelled—to reveal or disclose communications made to him under such

circumstances.”) (citation omitted).

6

The work product doctrine, which the U.S. Supreme Court has described as a

“qualified privilege for certain materials prepared by an attorney ‘acting for his client in

anticipation of litigation,’” see Commonwealth v. Williams, 86 A.3d 771, 782 n.6 (Pa.

2014) (quoting United States v. Nobles, 422 U.S. 225, 237-38 (1975)), exempts from

discovery certain types of documents. See Pa.R.Crim.P. 573(G) (defining the work

product doctrine as barring disclosure “of legal research or of records, correspondence,

reports, or memoranda to the extent that they contain the opinions, theories, or

conclusions of the attorney . . . or members of their legal staffs”).

[J-91-2015] - 4

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, 393 A.2d 313, 316 (Pa. 1978) (“[A] plea of guilty to a

criminal charge is regarded as a waiver of the privilege against self-incrimination with

respect to that charge.”) (citation omitted). Given this plea, the PCRA court was unable

7

Additionally, each party accused the other of causing undue delay. The

Commonwealth opposed PCRA counsel’s request for time to conduct a privilege review

by arguing that counsel already had been in possession of trial counsel’s file for two

years, suggesting a lack of diligence. PCRA counsel, on the other hand, suggested that

it was the Commonwealth that had not been diligent because it waited two years from

receiving notice of Flor’s intent to call trial counsel as witnesses to seek this discovery.

[J-91-2015] - 5

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 (“He plead[ed] guilty. He hasn’t said

anything confidentially to his trial counsel. . . . I just can’t fathom, given the posture of

this case and the guilty plea, what could possibly be privileged.”).

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.

II. Issues and Jurisdiction

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.

[J-91-2015] - 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, 86 A.3d 771, 787 (Pa. 2014);

Commonwealth v. Miller, 987 A.2d 638, 671 (Pa. 2009); Commonwealth v. Sattazahn,

952 A.2d 640, 662 (Pa. 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, 960 A.2d 59, 86 (Pa. 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 Commonwealth v. Kennedy, 876 A.2d 939,

943 n.3 (Pa. 2005).

Generally, subject to limited exceptions, litigants may appeal only final orders.

Williams, 86 A.3d at 780. One of the exceptions is the collateral order, which is

addressed in Rule 313 of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P.

313. Rule 313 permits the immediate appeal as of right from an otherwise

unappealable, interlocutory order provided that three requirements are met: “(1) the

order must be separable from, and collateral to, the main cause of action; (2) the right

involved must be too important to be denied review; and (3) the question presented

[J-91-2015] - 7

must be such that if review is postponed until after final judgment, the claim will be

irreparably lost.” Harris, 32 A.3d at 248; Pa.R.A.P. 313(b). As we established in Harris,

discovery orders rejecting claims of privilege and requiring disclosure constitute

collateral orders that are immediately appealable under Rule 313. 32 A.3d at 251

(“[W]e reaffirm our holding in Ben [v. Schwartz, 729 A.2d 547 (Pa. 1999)], that orders

overruling claims of privilege and requiring disclosure are immediately appealable under

Pa.R.A.P. 313.”); see also Williams, 86 A.3d at 780 (“This Court has moved towards a

category-wide exception to discovery orders that are alleged to violate a protected

privilege, such as the attorney-client privilege or the work product doctrine.”). Flor

argues that the PCRA court’s discovery order is appealable now because it violates the

attorney-client privilege and the work product doctrine. The Commonwealth does not

contest this Court’s jurisdiction in this appeal pursuant to Rule 313. Accordingly, our

precedents establish that we have jurisdiction over the PCRA court’s discovery order to

the extent that it rejected Flor’s claim of privilege and compelled disclosure of trial

counsel’s file.

We pause to observe that Flor has raised two additional challenges to the PCRA

court’s order which do not depend upon a resolution of whether trial counsel’s file

contains material covered by the attorney-client privilege or work product doctrine.

Specifically, relying upon the rule governing discovery in post-conviction proceedings,

Flor argues that the PCRA court’s discovery order did not meet the “good cause”

threshold of Rule 902(E)(2), because the Commonwealth failed to request specific

documents and, instead, sought disclosure of the entire file. See Williams, 86 A.3d at

789 (providing that general discovery requests are insufficient, and requiring the

[J-91-2015] - 8

requester to identify specific documents or items). To the extent that the

Commonwealth relied upon trial counsel’s inability to recall the scope of their

investigation, Flor asserts that the Commonwealth failed to make a factual proffer to

identify the claims in question, the questions posed to trial counsel, or the events trial

counsel could not recall. By virtue of the affidavits from trial counsel, Flor disputes the

Commonwealth’s factual assertions and submits that trial counsel could recall a great

deal about their representation of Flor. Flor argues that the Commonwealth’s discovery

motion was insufficient to justify any discovery, much less the broad discovery

authorized by the PCRA court.

Second, Flor argues that the PCRA court erred in compelling disclosure of trial

counsel’s original file because that file belongs exclusively to the client, and counsel has

a legal and professional obligation to safeguard it. See Maleski v. Corporate Life Ins.

Co., 641 A.2d 1, 6 (Pa. Cmwlth. 1994) (providing that documents in the client’s file

belong to the client); Pa.R.P.C. 1.15(b) (requiring counsel to safeguard the client’s

property). Flor has not advanced a Rule 313 analysis with regard to either of these two

issues.

As we explained in Williams, the collateral order doctrine must be construed

narrowly, in deference to the final order doctrine, and in recognition of the fact that a

party may seek interlocutory appeal by permission pursuant to Pa.R.A.P. 312. Williams,

86 A.3d at 780; see also In re Estate of Stricker, 977 A.2d 1115, 1119 (Pa. 2009) (“The

[collateral order] doctrine is to be construed narrowly to preserve the integrity of the

general rule that only final orders may be appealed; thus, the requirements for a

collateral order are applied relatively stringently.”); Rae v. Pennsylvania Funeral

[J-91-2015] - 9

Directors Ass'n, 977 A.2d 1121, 1126 (Pa. 2009) (“To buttress the final order rule, we,

too, have concluded the collateral order doctrine is to be construed narrowly, and we

require every one of its three prongs be clearly present before collateral appellate

review is allowed.”). To limit the scope of collateral review, mindful that our precedent

cautions against permitting the collateral order doctrine to become an exception that

swallows the rule, we require the three-prong collateral order test to be met for each

individual issue that an appellate court reviews upon collateral appeal. Rae, 977 A.2d

at 1130 (holding that “the collateral order rule’s three-pronged test must be applied

independently to each distinct legal issue over which an appellate court is asked to

assert jurisdiction pursuant to Rule 313”).

In accord with Rae, we will not address whether the PCRA court’s order was

supported by good cause, or whether that court abused its discretion in compelling

disclosure of trial counsel’s original file. Although he is the appealing party, Flor has

advanced no argument that the collateral order rule’s three-pronged test is satisfied with

regard to these latter claims. Our jurisdiction pursuant to Rule 313 extends on this

appeal solely to the question of whether the PCRA court’s discovery order was

supported by good cause sufficient to overcome the relevant attorney-client privilege

and the work product doctrine.8

8

Because discovery orders in PCRA proceedings must be supported by good

cause, our analysis of the privilege and the doctrine necessarily entails a review of

whether the Commonwealth established good cause for the discovery. In Williams,

which also involved an appeal pursuant to Rule 313, we resolved a two-pronged attack

on a PCRA court’s discovery order that granted the post-conviction petitioner access to

the prosecutor’s trial notes regarding witness interviews, premised upon the petitioner’s

argument that the prosecutor’s duty to disclose exculpatory material pursuant to Brady

v. Maryland, 373 U.S. 83 (1963), defeated the relevant work product protection. 86

(continuedO)

[J-91-2015] - 10

III. Merits

Flor argues that the PCRA court’s discovery order violated the attorney-client

privilege and work product doctrine, as well as his Sixth Amendment right to counsel.

Flor emphasizes the importance of the two protections to the functioning of our criminal

justice system and to a criminal defendant’s vindication of his right to counsel. See

United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978) (“Free two-way communication

between client and attorney is essential if the professional assistance guaranteed by the

sixth amendment is to be meaningful.”).

Flor acknowledges that, when a PCRA petitioner challenges prior counsel’s

effectiveness, the privilege is waived as to materials placed “in issue” by the particular

claims. See Harris, 32 A.3d at 253 (“In-issue waiver occurs when the privilege-holder

asserts a claim or defense, and attempts to prove that claim or defense by reference to

(Ocontinued)

A.3d at 775-76. The Commonwealth argued on appeal, first, that the discovery order

compelled the disclosure of privileged communications, and, second, that it, therefore,

ran afoul of the good cause standard imposed by Rule 902(E)(2). Id. at 778.

Discussing our jurisdiction pursuant to Rule 313, and examining whether the discovery

order was separable from the petitioner’s underlying Brady claim, we observed that the

good cause standard required the requesting party to defeat the relevant privileges

irrespective of the basis of the underlying claim. Id. at 781. On the merits, we agreed

with the Commonwealth that the petitioner did not establish good cause, because the

existence of the requested documents was speculative and, if the documents in fact

existed, they were protected by the work product doctrine. Id. at 790. By compelling

disclosure, the PCRA court had invaded the Commonwealth’s work product based

purely upon speculation, and, therefore, failed to meet the good cause threshold of Rule

902(E)(2). Id. at 790-91.

As Williams instructs, determining the merits of whether a PCRA discovery order

impermissibly invaded a protected area will require some analysis of whether the order

was supported by good cause. Litigants may not, however, rely upon Rule 313 to

challenge discovery orders for reasons unrelated to privilege claims, without satisfying

the requirements of Rule 313 as to each issue. Rae, supra.

[J-91-2015] - 11

the otherwise privileged material.”). According to Flor, the PCRA court’s order granting

wholesale discovery of trial counsel’s file to the Commonwealth swept important

protections aside and failed to conduct the issue-specific waiver analysis required under

Harris. The consequence, according to Flor, was to compel disclosure of all materials

contained within the files, including direct appeal material that the Commonwealth and

the PCRA court agreed remained protected by privilege. Cf. Commonwealth v. Chmiel,

738 A.2d 406, 424 (Pa. 1999) (holding that “an attorney may not respond to allegations

of ineffectiveness by disclosing client confidences unrelated to such allegations”).

Flor argues that the breadth of the PCRA court’s order in this case works a

chilling effect upon the Sixth Amendment right to counsel. Flor analogizes this case to

Chmiel, in which a PCRA petitioner challenged trial counsel’s effectiveness in post-

conviction proceedings. 738 A.2d 406. When trial counsel testified in response, he

revealed communications from the petitioner that were otherwise privileged. Following

post-conviction proceedings, the petitioner was awarded a new trial, at which the

Commonwealth introduced trial counsel’s post-conviction testimony. The petitioner

appealed to this Court. Upon review, we held that the Commonwealth could not use the

post-conviction testimony of trial counsel against the petitioner at petitioner’s retrial. We

explained that permitting the use of such testimony would place criminal defendants in

the untenable position of choosing either to withhold information from their attorneys or

declining to challenge counsel’s effectiveness out of fear that prior communications

would become admissible, thereby imposing “a chilling effect on defendants’ exercise of

their right to the effective assistance of counsel.” Chmiel, 738 A.2d at 423. According

to Flor, compelled disclosure of the entirety of trial counsel’s file in this case would have

[J-91-2015] - 12

a similar chilling effect upon defendants’ exercise of their right to effective assistance of

counsel, because would-be PCRA petitioners would be forced to choose between

accepting disclosure of privileged material or abandoning potentially meritorious claims

of ineffectiveness. To remedy this legal error, Flor requests that we vacate the

discovery order and direct the PCRA court to provide counsel the opportunity to conduct

an issue-specific privilege assessment.

Relying upon the PCRA court’s second rationale for its discovery order, the

Commonwealth argues that Flor has waived the protections of the attorney-client

privilege and work product doctrine by challenging trial counsel’s ineffectiveness.

Focusing upon the breadth of Flor’s ineffectiveness claims, the Commonwealth argues

that Flor has faulted every aspect of trial counsel’s representation, from pre-trial motions

through the penalty phase. Although the Commonwealth agrees with Flor that Harris

compels a finding of waiver only as to matters that a post-conviction petitioner has

placed “in issue,” the Commonwealth believes that Flor’s extensive allegations of trial

counsel ineffectiveness put “in issue” every aspect of counsel’s representation, thereby

waiving in toto the attorney-client privilege and work product protection and

necessitating disclosure of the entirety of trial counsel’s file.

The Commonwealth also maintains that PCRA counsel cannot be the gate-

keeper that determines which documents are privileged, and further suggests that

requiring the PCRA court to conduct an in camera review would add unnecessary delay

to these lengthy proceedings. The Commonwealth believes that compelled disclosure

of the entire file would be far more expedient, and warranted under the circumstances.

Further, to prevent the inclusion of direct appeal material within trial counsel’s file, which

[J-91-2015] - 13

the Commonwealth agrees is not discoverable, the Commonwealth asserts that PCRA

counsel should have utilized the ten days’ production time afforded it by the PCRA court

to redact and remove any such material.

The Commonwealth distinguishes Chmiel by arguing that, unlike the prosecution

in that case, it is not seeking to use privileged material to prosecute Flor. Rather, the

Commonwealth is seeking the opportunity to defend Flor’s existing conviction against

collateral attack. Additionally, the Commonwealth believes that it is unrealistic to

suppose, as Flor suggests, that a criminal defendant will withhold information from trial

counsel out of fear that the information will be revealed when he later wishes to

challenge that attorney’s effectiveness.

It is beyond peradventure that Pennsylvania law protects the attorney-client

privilege and recognizes it as “the most revered of the common law privileges.” Chmiel,

738 A.2d at 414.9 Because the privilege seeks to foster confidence between attorney

and client in order to promote a trusting and open dialogue, permitting an attorney to

reveal to others what the client has disclosed would destroy and prevent the benefits of

9

The attorney-client privilege, as it pertains to criminal matters, is codified at

Section 5916 of the Judicial Code, 42 Pa.C.S. § 5916, as follows:

In a criminal proceeding counsel shall not be competent or permitted to

testify to confidential communications made to him by his client, nor shall

the client be compelled to disclose the same, unless in either case this

privilege is waived upon the trial by the client.

42 Pa.C.S. § 5916. The statutory codification of the attorney-client privilege suggests

the General Assembly’s acknowledgment of the significance of this protected interest.

See Chmiel, 738 A.2d at 423; see also Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa.

2011) (holding that “the attorney-client privilege operates in a two-way fashion to protect

confidential client-to-attorney or attorney-to-client communications made for the purpose

of obtaining or providing professional legal advice”).

[J-91-2015] - 14

representation. Id. at 423. In the criminal arena in particular, “the difficulty of obtaining

full disclosure from the accused is well known, and would become an absolute

impossibility if the defendant knew the lawyer could be compelled to report what he had

been told.” Id. (quoting 1 McCormick on Evidence § 87 (4th ed.1992)).

Pennsylvania law also protects an attorney’s work product from compelled

disclosure. This protection promotes our adversarial system “by enabling attorneys to

prepare cases without fear that their work product will be used against their clients.”

Kennedy, 876 A.2d at 948. Indeed, we have characterized the work product doctrine as

“one of the most fundamental tenets of our system of jurisprudence.” Commonwealth v.

Dennis, 859 A.2d 1270, 1278 (Pa. 2004).

Nevertheless, a party who challenges the effectiveness of trial counsel cannot

invoke privilege to prevent counsel from responding to the allegations. Chmiel, 738

A.2d at 414. “In effect, the client’s attack on the competence of counsel serves as a

waiver of the privilege as to the matter at issue.” Id. Because ineffectiveness

challenges do not waive the attorney-client privilege or work product doctrine as to all

material counsel may possess, our precedent requires an issue-specific analysis of

waiver. Harris, 32 A.3d at 252 (holding that when a petitioner challenges counsel’s

effectiveness in a post-conviction petition, he only has waived his privileges to the

extent that he “puts the privileged materials in issue. . .”); Chmiel, 738 A.2d at 424

(holding that “an attorney may not respond to allegations of ineffectiveness by

disclosing client confidences unrelated to such allegations”); see also 42 Pa.C.S. §

9545(d)(3) (“When a claim for relief is based on an allegation of ineffective assistance of

[J-91-2015] - 15

counsel as a ground for relief, any privilege concerning counsel’s representation as to

that issue shall be automatically terminated.”) (emphasis added).

In Harris, the post-conviction petitioner challenged trial counsel’s effectiveness

with regard to the presentation of an expert witness psychologist during the mitigation

phase of his trial. Harris, 32 A.3d at 244. To defend against these allegations, the

Commonwealth sought from the PCRA court a declaration that Harris had waived his

psychologist-patient privilege with respect to the expert witness, and further sought

permission to hire the psychologist as its own expert for the PCRA proceedings. After

the PCRA court granted the Commonwealth’s motion and Harris appealed pursuant to

Rule 313, we reversed the lower court’s order permitting the Commonwealth to hire

Harris’ prior expert as its own.10 Although we agreed with the Commonwealth and the

PCRA court that, by challenging the performance of the expert and of trial counsel,

Harris had waived the privilege as to material necessary for the Commonwealth to

respond to those challenges, we held that the Commonwealth could not retain Harris’

former expert. We reasoned that permitting the Commonwealth to retain the expert

“would not only risk disclosure of material to which [Harris] has not waived privilege, but

also would erode public confidence in the integrity of criminal proceedings.” Id. at 252.

We explained that “[i]n-issue waiver occurs when the privilege-holder asserts a claim or

defense, and attempts to prove that claim or defense by reference to the otherwise

privileged material.” Id. at 253 (citing Rhone–Poulenc Rorer Inc. v. Home Indem. Co.,

10

We also held that the Commonwealth could subpoena the expert as a fact

witness, and we tasked the PCRA court with determining on remand precisely which

portions of the expert’s testimony remained privileged in light of Harris’ claims. Harris,

32 A.3d at 253-54.

[J-91-2015] - 16

32 F.3d 851, 863 (3d Cir. 1994)). Additionally, because the expert in Harris also was

privy to confidential communications between Harris and trial counsel, some of which

may have had no bearing upon Harris’ PCRA claims, we observed that the mere

potential for still-privileged material to be revealed was sufficient to bar the prosecution

from retaining and consulting with the expert. Id. at 253. Accordingly, we held that the

PCRA court erred by allowing the Commonwealth to retain the expert witness. Id. at

254.

It is undisputed that Flor’s conversations with trial counsel were protected by the

attorney-client privilege, and that trial counsel’s research, correspondence, reports, or

opinions were protected by the work product doctrine. Absent waiver, this material

would remain protected against compelled disclosure. It is further undisputed that the

PCRA court in this case compelled disclosure of trial counsel’s file without conducting

an “in-issue” waiver analysis to determine the extent to which Flor’s claims depended

upon otherwise privileged material, as required by Harris and Section 9545(d)(3).

PCRA counsel alleged that this voluminous file contained privileged documents

because it included direct appeal material and material unrelated to the issues raised in

the PCRA petition, including memoranda and legal research containing trial counsel’s

opinions and material relating to investigative matters. N.T., 6/22/2015, at 15, 19-20.

Because trial counsel was privy to confidential attorney-client communications, some of

which may have no bearing upon Flor’s present PCRA claims of ineffectiveness, it is

distinctly possible that trial counsel’s file contains privileged material that Flor has not

placed “in issue.” This possibility requires strict adherence to our precedent protecting

privileged communications. See Harris, supra; Chmiel, supra.

[J-91-2015] - 17

The Commonwealth maintained that it did not seek materials related to direct

appeal. Commonwealth’s Motion at ¶ 8; N.T., 6/22/2015, at 6; id. at 26 (“While [PCRA

counsel] says there’s a couple of matters, one is that he believes that it may still be

privileged. One is a direct appeal. We are not interested in that.”). And the PCRA

court indicated in its opinion that it had not directed trial counsel to turn over documents

related to Flor’s direct appeal. PCRA Ct. Op. at 10. Yet, the PCRA court’s broad order

compelled disclosure of the entire file, which included the direct appeal materials that all

parties acknowledge are privileged.11

The PCRA court neither conducted an in camera review nor provided counsel

with the opportunity to separate the material that remained privileged from that which

was put in issue by Flor’s claims. Although it may well be that the bulk of trial counsel’s

file no longer is privileged because of the scope of Flor’s claims, it also is possible that

some material remains privileged because it was not put in issue. As in Harris, the

mere potential that the PCRA court’s order will force the disclosure of privileged

materials requires reversal of the PCRA court’s discovery order. See Harris, 32 A.3d at

253 (recognizing that the PCRA court’s order “create[d] the potential that still-privileged

material will be revealed”).

The same concerns that mandate recognition of the attorney-client privilege

compel recognition that disclosure of the entirety of trial counsel’s file without an issue-

specific waiver analysis also would have a chilling effect upon defendants exercising

11

The Commonwealth suggests that PCRA counsel could have used the ten days’

production time afforded to remove any material related to the direct appeal. However,

the PCRA court’s order left no room for winnowing. See N.T., 6/22/2015, at 34

(directing PCRA counsel to turn over “all of these twelve banker boxes”).

[J-91-2015] - 18

their right to effective representation. See Chmiel, 738 A.2d at 423. Knowing that

anything disclosed to counsel may be memorialized and retained within counsel’s file

and then turned over to the Commonwealth if the defendant later challenges counsel’s

representation, a reasonable defendant may withhold information about his case from

counsel. Or he may forego a meritorious challenge to counsel’s ineffectiveness in order

to avoid disclosure to the Commonwealth. In effect, if Flor was represented by

ineffective trial counsel, he faced a constitutionally impermissible choice: either

challenge the effectiveness of prior counsel, at the risk that all of his confidences shared

would be disclosed to the Commonwealth, or forego his ineffectiveness challenges so

as to protect the confidentiality of his prior conversations. We agree with Flor that, if

allowed to stand, the PCRA court’s overbroad discovery order would have a chilling

effect upon a PCRA petitioner’s ability to vindicate his constitutional right to effective

representation.

Moreover, to the extent that the PCRA court’s order was premised upon Flor’s

guilty plea and concomitant waiver of the privilege against self-incrimination, it was

error. Although a guilty plea to a criminal charge waives one’s right against self-

incrimination with respect to that charge, see Strickler, 393 A.2d at 316, a guilty plea

does not waive the attorney-client or work product protections. Rather, the attorney-

client privilege and work product doctrine respectively encompass all confidential

communications between attorney and client made for the purpose of obtaining

professional advice, see Chmiel, 738 A.2d at 423, and any documents containing the

attorney’s opinions, conclusions, or theories, see Williams, 86 A.3d at 782 n.6.

[J-91-2015] - 19

Accordingly, we conclude that the PCRA court abused its discretion by

compelling PCRA counsel to deliver to the Commonwealth the entirety of trial counsel’s

file without first discerning whether and to what extent the file contained privileged

material and removing such material from the file. We direct the PCRA court on remand

to permit PCRA counsel the opportunity to determine precisely what portions of trial

counsel’s file remain privileged in light of Flor’s claims. We urge the PCRA court to

ensure that this review is completed expeditiously to permit the proceedings to move

forward.

The PCRA court’s discovery order is vacated, and the case is remanded for

further proceedings consistent with this opinion. Jurisdiction relinquished.

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

Chief Justice Saylor files a concurring opinion in which Justice Donohue joins.

Justice Dougherty files a concurring opinion in which Justice Baer joins.

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