## Facts

- Francis Bauer Harris was convicted of first-degree murder for killing a witness who was expected to testify against him in an aggravated assault case, and he received a death sentence.
- At the penalty phase, Harris presented psychologist Vincent Berger, Ph.D., to support the statutory mitigating circumstance of extreme mental or emotional disturbance under 42 Pa.C.S. § 9711(e)(2).
- The jury found an aggravating circumstance, rejected mitigating circumstances, and imposed death; the sentence was affirmed on direct appeal.
- Harris filed a petition under the Post Conviction Relief Act (PCRA) alleging ineffective assistance of trial counsel for presenting Dr. Berger’s testimony based on an allegedly deficient evaluation (including failure to test for organic brain damage and possible “frontal lobe syndrome”).
- In response, the Commonwealth moved to retain Dr. Berger as its own expert for the PCRA proceedings, asserting that Harris’s ineffectiveness claim waived psychologist-client privilege.
- The PCRA court granted the Commonwealth’s motion, allowing it to retain Dr. Berger; Harris sought appellate review of that interlocutory privilege ruling.

## Issues

1. Whether, in a capital PCRA proceeding, the Commonwealth may retain as its own expert a psychologist who previously evaluated the defendant for the defense and testified at the penalty phase.
2. Whether a defendant’s ineffective-assistance claim attacking the defense psychologist’s evaluation effects a complete waiver of psychologist-client privilege, or only a limited waiver necessary to litigate the claim.

## Decision

- The Supreme Court of Pennsylvania reversed the PCRA court’s order to the extent it allowed the Commonwealth to retain Dr. Berger as its expert.
- The court held that Harris’s privilege waiver, triggered by his ineffectiveness claim, was limited to information necessary for the Commonwealth to respond to that claim.
- The Commonwealth could subpoena Dr. Berger as a fact witness within the scope of the limited waiver, including matters tied to his prior testimony and evaluation relevant to the ineffectiveness allegations.
- The Commonwealth remained free to retain an independent mental-health expert for the PCRA litigation.

## Legal Principles

- Psychologist-client privilege is not wholly forfeited by a defendant’s post-conviction ineffective-assistance claim; waiver extends only as far as needed to permit fair litigation of the claim the defendant put in issue.
- Using a former defense mental-health expert as the prosecution’s retained expert poses an unacceptable risk of disclosure or use of privileged, non-waived communications and defense strategy.
- The prosecution may obtain testimony from the former defense expert as a fact witness, but only on topics within the limited waiver created by the defendant’s claim.

## Conclusion

The court limited privilege waiver in capital PCRA ineffectiveness litigation and barred the Commonwealth from retaining the defendant’s former mental-health expert as its own, while permitting fact testimony only to the extent necessary to address the ineffectiveness allegations.


Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011)