Commonwealth v. Harris

Commonwealth v. Harris

Opinion

 [*578]  [**244]   MR. 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.

 [*579]  After we affirmed Appellant's judgment of sentence, Appellant filed a petition under the Post Conviction Relief Act¹ ("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  [***2] was aware that Dr. Berger's evaluation of Appellant had been deficient because he had not tested him for organic brain damage. Appellant  [**245]  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  [***3] 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.

 [*580]  I. Background

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