Commonwealth v. Sims

HUTCHINSON, Justice,

concurring.

I join the opinion of the court but write separately to emphasize that the law relating to examination of witnesses and the ethics of the profession require that the cross-examiner have a sound reason for believing his questions will yield information which is materially favorable to his client before delving into areas covered by the attorney-client privilege. The policy ends fostered by the privilege, encouraging full disclosure between an attorney and his client, are ill-served by “fishing expeditions” seeking to undermine a witness’s testimony through the invocation of the privilege. Counsel should have a reasonable belief that a privileged conversation relevant to the case at hand took place before cross-examination likely to force a witness to invoke the privilege is allowed. It is only because there is ample evidence on this record that counsel had the requisite information to properly question the witness that I can join the majority.

The bounds of cross-examination are properly within the sound discretion of the trial judge. Commonwealth v. Sisco, 484 Pa. 85, 88 , 398 A.2d 955, 957 (1979). Generally, a cross-examiner must be afforded the latitude reasonably necessary to insure a fair trial. Smith v. Illinois, 390 U.S. 129, 132 , 88 S.Ct. 748, 750 , 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 692 , 51 S.Ct. 218, 219 , 75 L.Ed. 624 (1931). These principles do not dictate or permit a *379 willy-nilly examination of witnesses subject to the confidential relationship protected by the attorney-client privilege. An attorney must have a reasonable basis which satisfies the sound discretion of the trial judge before he can be permitted to probe into confidential communications on cross-examination. Counsel’s groundless pursuit of the invocation of the privilege by a witness would inflict a grave wound upon the ancient privilege guarding communications between attorney and client, a privilege which breathes life into our independent adversarial system. Therefore, I believe counsel must demonstrate, as he did in this case, a reasonable belief that a material privileged discussion took place before cross-examining a witness on communications with that witness’s attorney. Of course, general law requires at least a good faith belief that the cross-examination will yield relevant information. See, e.g., Commonwealth v. Brown, 302 Pa. Super. 391 , 448 A.2d 1097 (1982) (to impeach witness with prior inconsistent statement must be evidence that statement was made or adopted by witness whose credibility is being impeached). See also DR 7-106(C)(1), (2) (“In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. (2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.”). A fortiori where the attorney-client privilege is involved, mere subjective belief that the inquiry is relevant should not be enough. A higher standard of showing to the court a reasonable belief that the witness has material information not otherwise available seems more appropriate to me.

In the instant case, counsel for appellant Sims, Norris E. Gelman, Esquire, phoned Joel S. Moldovsky, Esquire, the attorney who had represented Hilton when Hilton was under arrest for the death of Teasley. During argument on appellant’s motion to compel disclosure of the discussions between Attorney Moldovsky and Mr. Hilton, Moldovsky testified as to the contents of the phone call:

*380 Q. Mr. Moldovsky, did you in any way reveal to Mr. Gelman the nature of the conversation or interview which you had with Mr. Hilton?

A. My answer is as follows: When Mr. Gelman called me and said I once represented Mr. Hilton, and I know Mr. Gelman. We were DA’s together and I have known him over the years. So, we are not co-Counsel in any current cases or anything like that.

Said, remember your Barry Hilton case? And frankly at that point in time, the name didn’t mean anything to me. But I went to my closed files, got out the Barry Hilton Case. I said, oh, yeah, sure. I said, oh, my God. Rearrest?

And he said — well, he says I have Bob Sims, Barry Sims, Robert Sims, something Sims, Simmons, whatever it was. That he told me he represents Sims or Simmons or Bob Sims or whatever it was.

And I said wait a minute. I looked through. I looked co-Defendant, looked through my whole file, said who do you represent?

And he said Sims or Simmons, whatever the name he said.

I said, I don’t know anything about Simmons. He said the co-Defendant.

Thereafter, I was advised that my client was now the Commonwealth’s witness. Obviously, I didn’t divulge anything from my file.

But when he told me Sims or Simmons, I did look through my file, look through the police reports, look what not, and I never saw the name.

And thus I said to him, I don’t want any mistake about what did or didn’t go down. Look, what I said, I don’t know anything about a Sims or Simmons. That’s the extent of it.

N.T. Vol. 1, June 22, 1983 at 9-10.

Mr. Moldovsky did not realize the disclosure that he did not encounter the name Sims in his files led Attorney *381 Gelman to infer that Hilton’s account of the homicide, blaming Sims, may have been a recent fabrication. 1 This disclosure gave Attorney Gelman a reasonable basis upon which to pursue this line of questioning of witness Hilton. Since Hilton’s credibility was the key to the Commonwealth’s case and there was no other way appellant could show that Hilton’s story involving Sims was a recent fabrication, I believe the majority correctly concludes that appellant had a right to inquire into this area before the jury, leaving Hilton the option of waiving his privilege or invoking it on the stand.

. The record reveals no evidence of deceit on the part of Mr. Gelman in soliciting the confidential information nor any intent on the part of Mr. Moldovsky to breach the attorney-client privilege. As the evidentiary privilege may only be waived by the client, there is no waiver. 42 Pa.C.S. § 5916. A punishable breach of an attorney’s ethical obligation to preserve the secrets and confidences of a client requires that the disclosure be knowing. DR 4-101(B). However, counsel are reminded of the admonition of EC 4-1: "Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him.”