Commonwealth v. Flor, R., Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: April 25, 2016
• Docket: 708 CAP
• Status: Published

Opinion

[J-91-2015][M.O. – Wecht, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 708 CAP : Appellee : Appeal from the Order entered on : 6/22/15 in the Court of Common Pleas, v. : Bucks County, Criminal Division at No. : CP-09-CR-0006917-2005 : ROBERT ANTHONY FLOR, : : Appellant : SUBMITTED: January 20, 2016

CONCURRING OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: April 25, 2016

I join the majority opinion.

It seems that the common pleas court’s order mandating wholesale disclosure

may have been due to a belief that trial counsel’s files had to be either protected or

divulged as a unit. I believe there is a middle ground, however, which is able to protect

both parties’ interests. As a supervisory matter, moreover, it seems appropriate for this

Court to supply guidance on the topic for purposes of further proceedings on remand.

Cf. Commonwealth v. Markman, 591 Pa. 249, 282, 916 A.2d 586, 605-06 (2007) (after

awarding a new trial, finding it advisable for the sake of judicial economy to address

additional claims which were likely to arise on remand).

Because of the possibility that materials may be withheld realtive to which a

reasonable argument could be made that they should be divluged, one possibility is for

the common pleas court to require PCRA counsel to produce a privilege log referencing such items. This would have multiple benefits. First, it would give the Commonwealth

an indication of the nature of materials which PCRA counsel has elected not to disclose

and, accordingly, afford it an opportunity to contest the withholding of specific

documents. Any dispute along these lines could then be submitted to the court for

resolution following in camera review. See generally LaVelle v. Office of Gen. Counsel,

564 Pa. 482, 497 n.13, 769 A.2d 449, 458 n.13 (2001) (stating that an agency subject to

a Right to Know Act request should, upon a reasonable showing by the requester that

withheld items contain information subject to disclosure, “be required to provide

sufficiently detailed information concerning the contents of the requested document to

enable a reviewing court to make an independent assessment of whether it meets the

statutory requirements for mandatory disclosure”). Finally, the creation of such a log

would facilitate appellate review should that become necessary. Accord Yacobet v.

UPMC Presbyterian, 119 A.3d 1012, 1029 (Pa. Super. 2015) (citing T.M. v. Elwyn, Inc.,

950 A.2d 1050, 1063 (Pa. Super. 2008), in turn quoting Gocial v. Independence Blue

Cross, 827 A.2d 1216, 1223 (Pa. Super. 2003)).

Justice Donohue joins this concurring opinion.

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