Com. v. Alston, C. ( 2020 )

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2020 PA Super 123COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN STEWART ALSTON :
:
Appellant : No. 1530 WDA 2018
Appeal from the Order Entered September 24, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012015-2018
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
OPINION BY SHOGAN, J.: FILED MAY 26, 2020
Appellant, Calvin Stewart Alston, brings an interlocutory appeal from the
trial court’s September 24, 2018 order quashing a subpoena duces tecum
served on his behalf. After careful review, we reverse the trial court’s order.
On August 3, 2018, Appellant was charged with one count of criminal
homicide, one count of tampering with physical evidence, one count of persons
not to possess firearms, and one count of firearms not to be carried without a
license.1 Appellant qualified for the services of the Allegheny County Public
Defender’s Office (“the Public Defender”). On September 11, 2018, Appellant
served a subpoena duces tecum on the Records Custodian of the Allegheny
County Medical Examiner’s Office (“MEO”) pursuant to Pa.R.Crim.P. 107
seeking “the autopsy report for Vera Renee Williams Butler and all reports,
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1 18 Pa.C.S §§ 2501(a), 4910(1), 6105(a)(1), and 6106 (a)(1), respectively.
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documents and photographs associated with this investigation, including, but
not limited to, the toxicology report, the mobile unit report, and any [MEO]
section reports.” Court Subpoena, 9/11/18. Appellant requested that the
MEO provide the materials by September 28, 2018, the date of his preliminary
hearing. Id. The MEO neither complied with the subpoena nor filed a motion
to quash.
On September 24, 2018, the Allegheny County District Attorney (“the
DA”) filed a motion to quash the subpoena and sought a ruling that would
prohibit the Public Defender from issuing subpoenas duces tecum to the MEO
in any criminal case absent a showing of reasonableness. Commonwealth’s
Motion to Quash Subpoenas and Motion for Order of Court Pursuant to
Pa.R.Crim.P. 573(E), 9/24/18. The court did not hold a hearing on the motion
and granted the Commonwealth’s motion the same day it was filed. The trial
court entered the following order:
AND NOW, to-wit, this 24th Day of September 2018 it is
hereby ORDERED, ADJUDGED and DECREED that the subpoenas
[duces] tecum issued in Commonwealth v. Alston and
Commonwealth v. Boulware are hereby QUASHED.[2]
Pursuant to Pa.R.Crim.P. 573 (E), [the Public Defender] is
hereby PROHIBITED from issuing subpoenas duces tecum to the
[MEO] for documentary evidence and/or investigative materials in
all active criminal cases prior to the time prescribed by
Pa.R.Crim.P. 573(A) absent a showing to this Honorable Court
that there is a reasonable basis to subpoena said requested
materials.
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2A similar subpoena was served on the MEO on behalf of Joseph Boulware,
whose appeal was docketed at 1531 WDA 2018.
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Order, 9/24/18. Appellant filed a response to the motion to quash/motion to
reconsider on September 25, 2018. The preliminary hearing was held on
September 28, 2018, despite Appellant’s request that the matter be continued
until a decision on the subpoena issue. All charges were held for trial.
Because the trial court did not rule on Appellant’s September 25, 2018 motion
within thirty days of the quashal order, Appellant filed his interlocutory appeal
with this Court on October 24, 2018.
On November 9, 2018, after the filing of the instant appeal, the trial
court held a hearing on several motions presented by Appellant, including the
issue relating to the subpoena. At that hearing, the parties presented their
respective legal arguments on the propriety of the September 24, 2018 order
on the record, but the trial court did not vacate the order.3 The trial court did
not order Appellant to file a Pa.R.A.P. 1925(b) Statement nor did it file a
Pa.R.A.P. 1925(a) Opinion.
Appellant presents the following questions for our review:
I. Whether this Honorable Court has jurisdiction over the
instant appeal pursuant to the collateral order doctrine?
II. Whether the [DA] has standing to seek to quash a subpoena
duces tecum issued by the defense to a third party when the
third party is not an agent of the prosecution?
III. Whether the trial court’s order, a blanket prohibition on the
[Public Defender] from issuing subpoenas duces tecum to
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3 The trial court also denied Appellant’s motions to reconsider and to certify
the September 24, 2018 interlocutory order for appeal, as well as a motion
to stay the proceedings.
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the [MEO] in all criminal cases, and which specifically applies
only to the [Public Defender], impermissibly treats indigent
criminal defendants different than other similarly situated
criminal defendants, in violation of the federal and state
constitutional principles of equal protection and due process
of law?
IV. Because a subpoena duces tecum is presumed valid in
criminal cases, the constitutional right to compulsory
process entitles a criminal defendant to request any
potentially exculpatory, non-privileged information, and the
materials requested are not privileged, whether the trial
court’s order impermissibly shifted the burden of proof by
requiring the defense to demonstrate that the subpoena
duces tecum should be honored, rather than requiring the
party subject to the subpoena duces tecum to demonstrate
that it should be quashed?
V. Where [Appellant] issued a valid subpoena duces tecum to
the [MEO], requesting materials that are neither privileged
nor in the possession or control of the prosecution, whether
the trial court’s order quashing said subpoena duces tecum
is unsupported by Pa.R.Crim.P. 573 (Pretrial Discovery and
Inspection) as well as violates [Appellant’s] federal and
state constitutional rights to effective confrontation,
compulsory process, due process, a fair trial, a complete
defense, and the effective assistance of counsel?
Appellant’s Brief at 4–5 (questions reordered for ease of disposition).
Before we reach the merits of this case, we must determine whether
jurisdiction is proper. Preliminarily, we note that with respect to criminal
cases, appeals are generally taken from a final order or judgment of sentence.
Commonwealth v. Wright, 178 A.3d 1030 (Pa. 2013); Commonwealth v.
Horn, 172 A.3d 1133, 1136 (Pa. Super. 2017). Despite the general rule, an
appeal may be taken from a nonfinal order if the order is a collateral order, as
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codified at Pa.R.A.P. 313 (Collateral Orders). Pursuant to Rule 313, a
collateral order is defined as “an order separable from and collateral to the
main cause of action where the right involved is too important to be denied
review and the question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P.
313(b). Thus, under Rule 313, a collateral order is one that is 1) separate
from and collateral to the main cause of action, 2) involves a right too
important to be denied review, and 3) if review is postponed until final
judgment, the claim will be lost. Commonwealth v. Blystone, 119 A.3d
306, 312 (Pa. Super. 2015). “Whether an order is appealable under the
collateral-order doctrine under Pa.R.A.P. 313 is a question of law, subject to
a de novo standard of review, and the scope of review is plenary.” Shearer
v. Hafer, 177 A.3d 850, 855 (Pa. 2018).
Appellant argues that jurisdiction is proper herein under Pa.R.A.P. 313.
Appellant’s Brief at 21–39. We agree. The first prong of the collateral-order
doctrine requires that the appealed order is collateral to and separate from
the main cause of action. This prong is satisfied where “it can be resolved
without an analysis of the merits of the underlying dispute” or is “entirely
distinct” from the underlying issues in the case. Blystone, 119 A.3d at 312
(quoting Commonwealth v. Williams, 86 A.3d 771, 781 (Pa. 2014)). In
this case, the appealed order relates to a subpoena duces tecum served upon
the MEO, and resolution of Appellant’s issue does not require any analysis of
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the merits of the underlying criminal case. Stated differently, the issue of
whether Appellant is entitled to the information sought in the subpoena duces
tecum is entirely distinct from whether Appellant is responsible for the death
of Ms. Butler.
As to the second prong, our Supreme Court has held that a right is
important if the interests that would go unprotected without immediate appeal
are significant relative to the efficiency interests served by the final order rule.
Shearer, 177 A.3d at 858–859. Appellant argues the issue involves a right
too important to be denied review because it involves constitutional rights to
compulsory process, due process, equal protection, and right to counsel.
Appellant’s Brief at 24–25. Moreover, we note that the language in the order
at issue applies beyond the instant case and prohibits the Public Defender
from issuing subpoenas duces tecum before the time allowed by Pa.R.Crim.P.
573(A), absent a showing of a reasonable basis, in any case within the county.
Thus, the second prong is satisfied. See Commonwealth v. Kennedy, 876
A.2d 939 (Pa. 2005) (finding that where issue implicates the work-product
doctrine, impacts other litigants, and affects the manner in which defense
attorneys prepare for trial, the issue satisfies the second prong).
Finally, the third prong requires us to examine whether Appellant’s claim
would be “irrevocably lost” if the case proceeded to final judgment. Spanier
v. Freeh, 95 A.3d 342, 346 (Pa. Super. 2013). Appellant argues that the
third prong is also satisfied because if he is successful in his defense, his claim
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will be rendered moot. Appellant’s Brief at 36 (citing Commonwealth v.
Sanchez, 82 A.3d 943 (Pa. 2013)). He also avers that his right to effective
assistance of counsel attaches at the preliminary-hearing phase, but his claim
that counsel was ineffective during the pretrial phase would be “rendered
immaterial” at the later stages of the litigation. Id. (citing Sanchez, 82 A.3d
at 943) (“Indeed, once a defendant has gone to trial and has been found guilty
of the crimes or crimes charged, any defect in the preliminary hearing is
rendered immaterial.”)). We agree and find Appellant has satisfied the third
and final prong of the collateral-order doctrine.
In his second question, in what appears to be an issue of first impression
in the Commonwealth, Appellant avers that the DA did not have standing to
seek to quash his subpoena duces tecum. Appellant’s Brief at 39. Appellant
claims that the DA did not have standing because the subpoena duces tecum
was served upon a third party who is not an agent of the prosecution.
Appellant’s Brief at 39. When determining standing on appeal, our standard
of review is de novo and our scope of review is plenary. M.J.S. v. B.B., 172
A.3d 651, 655 (Pa. Super. 2017). Our Supreme Court set forth the following
discussion of the concept of standing:
The core concept of standing is that a party who is not negatively
affected by the matter he seeks to challenge is not aggrieved, and
thus, has no right to obtain judicial resolution of his challenge. A
litigant is aggrieved when he can show a substantial, direct, and
immediate interest in the outcome of the litigation. A litigant
possesses a substantial interest if there is a discernable adverse
effect to an interest other than that of the general citizenry. It is
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direct if there is harm to that interest. It is immediate if it is not
a remote consequence of a judgment.
Petty v. Hospital Service Ass’n of Northeastern Pennsylvania, 23 A.3d
1004, 1013 (Pa. 2011) (quoting In re Milton Hershey School, 911 A.2d
1258, 1261–1262 (Pa. 2006)). “A party has a substantial interest in the
outcome of litigation if his interest surpasses that of all citizens in procuring
obedience to the law.” Johnson v. American Standard, 8 A.3d 318, 329
(Pa. 2010).
In support of his argument that the DA lacks standing, Appellant avers
that the DA is not the legal representative of the MEO, and the MEO is not a
law enforcement agency. Appellant’s Brief at 40. Appellant further avers that
the DA’s concerns in this matter amount to no more than “an abstract interest
in compliance with the law,” and that the DA “suffers no harm whatsoever in
an independent third party’s complying with a criminal defendant’s subpoena
duces tecum … .” Id. at 45 (emphasis in original).
In response, the Commonwealth argues that the DA’s authority to act
in criminal investigations is undisputed and that the DA is the chief law
enforcement officer for the county. Commonwealth’s Brief at 12. It also posits
that pursuant to 16 P.S. § 4241, which states, “In the exercise of his duties
as contained in this subdivision, the coroner shall, so far as may be
practicable, consult and advise with the district attorney,”4 the DA can act on
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4 The term “coroner” refers to both the coroner and MEO. 16 P.S. § 1202-B.
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behalf of the MEO to take action and preserve the integrity of the homicide
investigation. Commonwealth’s Brief at 13. Further, the Commonwealth cites
In re Randy Buchanan, 880 A.2d 568 (Pa. 2005), as demonstrating that the
DA has the authority to act in matters involving coroners or the MEO.
Commonwealth’s Brief at 13.
In Buchanan, a newspaper sought the release of an autopsy report and
the Blair County district attorney filed a petition for a preliminary injunction
and protective order to seal the autopsy report. Buchanan, 880 A.2d at 569–
570. The trial court initially denied the petition, but on appeal this Court
reversed, finding that the release of the report would hinder the criminal
investigation. The newspaper appealed to our Supreme Court, which affirmed
this Court’s ruling. Although our Supreme Court did not specifically hold that
the district attorney had standing to file the petition for a preliminary
injunction and protective order, it recognized that the district attorney could
control the release of information relating to a homicide investigation, which
presumes the district attorney has standing to seek an injunction or a
protective order where he or she deems it necessary. Buchanan, 880 A.2d
at 577–578. Given the above precedent, we find the DA has standing to
challenge a subpoena duces tecum served upon the MEO.5
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5 A review of case law from other jurisdictions supports the DA’s position that
his office has standing in the instant case. See People v. Spykstra, 234
P.3d 662 (Co. 2010) (finding that district attorney had standing to seek to
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We will address Appellant’s third and fourth issues together. In his third
issue, Appellant argues that the order, which he avers is a sweeping
prohibition applying only to the Public Defender, implicates both due process
and equal protection concerns. Specifically, Appellant argues, “[T]he essence
of equal protection under the law is that like persons in like circumstances will
be treated similarly. And although due process is not susceptible to precise
definition, the phrase expresses the requirement of fundamental fairness and
substantial justice.” Appellant’s Brief at 58 (citations omitted).
In his fourth issue, Appellant argues that the order constitutes an error
on the part of the trial court because the order required a showing of
reasonableness on the part of Appellant, which is an improper shift of the
burden. Appellant’s Brief at 48. Appellant argues that the trial court erred
because a subpoena duces tecum is presumed valid under Pennsylvania law,
and the party seeking to avoid compliance with the subpoena bears the burden
of proof. Id. at 49.
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quash subpoena duces tecum seeking all files on the victim’s family
computer); Commonwealth v. Lam, 827 N.E.2d 209 (Mass. 2005) (finding
that the majority of courts interpreting Fed.R.Crim.P. 17(c) have allowed the
government to challenge the issuance of subpoenas duces tecum); People v.
Ellman, 523 N.Y.S.2d 13 (Crim. Ct. Bronx Co. 1987) (finding that the state
attorney general had standing to seek to quash a subpoena duces tecum
served on a state department, and noting that if the attorney general did not
have standing, the department upon which the subpoena was served would
have to hire counsel when its interests could be adequately represented by
the attorney general).
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In response, the Commonwealth asserts that Appellant’s subpoena
duces tecum constitutes an attempt to “subvert the discovery process of
criminal cases, in gross violation … [of] Rule 573.” Commonwealth’s Brief at
18.6 Specifically, the Commonwealth avers that Appellant is trying to access
pretrial discovery that is generally not available to an accused at the
preliminary-hearing stage of a criminal proceeding. Id. at 18. The
Commonwealth further argues that the purpose of a subpoena duces tecum
is the production of documents to be used before the court; it is not the object
of the subpoena duces tecum to require the production of books and papers
merely for the party’s inspection, and the subpoena should not be used as a
fishing expedition. Id. at 20.
Pa.R.Crim.P. 573 provides, in relevant part, as follows:
(A) Informal. Before any disclosure or discovery can be sought
under these rules by either party, counsel for the parties shall
make a good faith effort to resolve all questions of discovery, and
to provide information required or requested under these rules as
to which there is no dispute. When there are items requested by
one party which the other party has refused to disclose, the
demanding party may make appropriate motion. Such motion
shall be made within 14 days after arraignment, unless the time
for filing is extended by the court. In such motion the party must
set forth the fact that a good faith effort to discuss the requested
material has taken place and proved unsuccessful. Nothing in this
provision shall delay the disclosure of any items agreed upon by
the parties pending resolution of any motion for discovery.
(B) Disclosure by the Commonwealth.
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6 The Commonwealth does not specifically address Appellant’s due process
and equal protection arguments.
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(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which
the Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s
attorney all of the following requested items or
information, provided they are material to the instant
case. The Commonwealth shall, when applicable,
permit the defendant’s attorney to inspect and copy
or photograph such items.
(a) Any evidence favorable to the accused
that is material either to guilt or to
punishment, and is within the possession
or control of the attorney for the
Commonwealth;
(b) any written confession or inculpatory
statement, or the substance of any oral
confession or inculpatory statement, and
the identity of the person to whom the
confession or inculpatory statement was
made that is in the possession or control
of the attorney for the Commonwealth;
(c) the defendant’s prior criminal record;
(d) the circumstances and results of any
identification of the defendant by voice,
photograph, or in-person identification;
(e) any results or reports of scientific
tests, expert opinions, and written or
recorded reports of polygraph
examinations or other physical or mental
examinations of the defendant that are
within the possession or control of the
attorney for the Commonwealth;
(f) any tangible objects, including
documents, photographs, fingerprints, or
other tangible evidence; and
(g) the transcripts and recordings of any
electronic surveillance, and the authority
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by which the said transcripts and
recordings were obtained.
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise
provided in Rules 230 (Disclosure of Testimony
Before Investigating Grand Jury) and 556.10
(Secrecy; Disclosure), if the defendant files a
motion for pretrial discovery, the court may
order the Commonwealth to allow the
defendant’s attorney to inspect and copy or
photograph any of the following requested
items, upon a showing that they are material to
the preparation of the defense, and that the
request is reasonable:
(i) the names and addresses of
eyewitnesses;
(ii) all written or recorded
statements, and substantially
verbatim oral statements, of
eyewitnesses the Commonwealth
intends to call at trial;
(iii) all written and recorded
statements, and substantially
verbatim oral statements, made by
co-defendants, and by co-
conspirators or accomplices,
whether such individuals have been
charged or not; and
(iv) any other evidence specifically
identified by the defendant,
provided the defendant can
additionally establish that its
disclosure would be in the interests
of justice.
(b) If an expert whom the attorney for the
Commonwealth intends to call in any proceeding
has not prepared a report of examination or
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tests, the court, upon motion, may order that
the expert prepare, and that the attorney for the
Commonwealth disclose, a report stating the
subject matter on which the expert is expected
to testify; the substance of the facts to which
the expert is expected to testify; and a
summary of the expert’s opinions and the
grounds for each opinion.
* * *
(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.
(F) Protective Orders. Upon a sufficient showing, the court may
at any time order that the discovery or inspection be denied,
restricted, or deferred, or make such other order as is appropriate.
Upon motion of any party, the court may permit the showing to
be made, in whole or in part, in the form of a written statement
to be inspected by the court in camera. If the court enters an
order granting relief following a showing in camera, the entire text
of the statement shall be sealed and preserved in the records of
the court to be made available to the appellate court(s) in the
event of an appeal.
Pa.R.Crim.P. 573 (A),(B)(1)(a-g), 2(a-b), E, F. In the instant case, the trial
court filed its order pursuant to Pa.R.Crim.P. 573(E), which, as recited above,
states the remedy for failure to follow the rules of discovery in criminal cases.
“[D]ecisions involving discovery in criminal cases lie within the
discretion of the trial court.” Commonwealth v. Smith, 955 A.2d 391, 394
(Pa. Super. 2008). We will not reverse a trial court’s order absent an abuse
of that discretion. Id. We note, however, that the trial court’s discretion is
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not unfettered. Id. at 395. As to the relief granted, our cases have held that
Rule 573(E) requires a proportionality requirement. Commonwealth v.
Jordan, 125 A.3d 55, 65 (Pa. Super. 2015) (en banc) (noting that although
the trial court is accorded discretion, there are limits upon sanctions the trial
court can impose).
Preliminarily, we note that there is a paucity of case law dealing with
subpoenas duces tecum in the criminal context.7 Most deal with discretionary
discovery, which, pursuant to Pa.R.Crim.P. 573 (B)(2)(a), requires that
requested items “are material to the preparation of the defense, and that the
request is reasonable.” See Commonwealth v. Blakeney, 946 A.2d 645,
660–661 (Pa. 2008) (holding that the trial court did not err in quashing a
subpoena duces tecum, where an appellant sought the personnel files of two
investigating officers, but could offer no reasonable basis for his request); see
also Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 1999)
(finding trial court erred in quashing defendant’s subpoena duces tecum where
defendant had a reasonable basis for his request).
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7 In the civil context, this Court has held that absent “facts supporting a
finding that the subpoena was obtained in bad faith or that it would cause
unreasonable annoyance, embarrassment, oppression, burden or expense,” it
was error for a trial court to grant a motion to quash the subpoena duces
tecum. PaineWebber, Inc. v. Devlin, 658 A.2d 409, 416 (Pa. Super. 1995).
See also In re June 1979 Allegheny County Investigating Grand Jury,
415 A.3d 73 (Pa. 1980) (finding that trial court did not err in denying motion
to quash subpoena duces tecum where party presented no specific evidence
of alleged financial hardship in complying with the subpoena).
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Furthermore, the majority of cases involving Rule 573(E) arise following
the Commonwealth’s failure to produce discovery or information to a
defendant. See, e.g., Commonwealth v. Jordan, 125 A.3d 55, 65 (Pa.
Super. 2015) (sanctioning the Commonwealth for failing reveal the identity of
a confidential informant after being ordered by the court to do so). However,
“[t]he remedies provided in Paragraph (E) ‘apply equally to the
Commonwealth or the defendant as the interests of justice require.’”
Commonwealth v. McNeil, 808 A.2d 950, 956 (Pa. Super. 2002). The issue
before this Court involves discovery that is at least, in part, mandatory from
the Commonwealth but that is requested from a third party.
The crux of Appellant’s argument is that the trial court’s order, as
drafted, is essentially a blanket prohibition on the Public Defender, preventing
it from issuing subpoenas duces tecum to the MEO in all criminal cases prior
to the time prescribed by Pa.R.Crim.P. 573(A). Appellant’s Brief at 58.
Appellant avers that this blanket prohibition subjects indigent criminal
defendants represented by the Public Defender to different, harsher treatment
than other similarly situated criminal defendants. Id. As Appellant points
out,
according to the plain language of the order, the sweeping
prohibition of issuing subpoenas duces tecum to the [MEO] applies
only to the Public Defender’s Office; it does not apply to the Office
of Conflict Counsel, which also represents indigent criminal
defendants, nor does it apply to the criminal defense at bar, in
general. Furthermore, it applies to the Public Defender’s Office in
all criminal cases.
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Appellant’s Brief at 59 (emphases in original). Ultimately, Appellant avers this
difference in treatment violates the principals of due process and equal
protection. “The essence of the constitutional principle of equal protection
under the law is that like persons in like circumstances will be treated
similarly.” Curtis v. Kline, 666 A.2d 265, 267 (Pa. 1995).
We need not reach the issue of the constitutionality of the order as
drafted because we find the order is overly broad and constitutes an abuse of
the trial court’s discretion. Rather than being directed to a specific party or
defendant as contemplated by Pa.R.Crim.P. 573(E), the order precludes any
individual represented by the Public Defender from issuing a subpoena duces
tecum to the MEO, prior to the time prescribed by Pa.R.Crim.P. 573(A), absent
a showing to the trial court that there is a reasonable basis for the requested
materials. The order goes beyond quashing the subpoena duces tecum filed
by Appellant in the instant case or otherwise sanctioning Appellant for a
violation of Pa.R.Crim.P. 573(A). It prevents any individual represented by
the Public Defender from issuing a subpoena duces tecum to the MEO prior to
the time set forth in Pa.R.Crim.P. 573(A) without showing a reasonable basis
before the trial court. Thus, we find the order is not “just under the
circumstances” because it will have ramifications beyond the instant case,
impacting all defendants who are represented by the Public Defender.
Pa.R.Crim.P. 573(E). The order as written constitutes an abuse of discretion
and must be reversed for that reason.
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However, even if the order was directed solely at Appellant, we would
be constrained to reverse. Appellant argues that the Commonwealth is, in
effect, claiming it “has exclusive power and control over all information in
criminal cases.” Appellant’s Brief at 19. While we do not view the
Commonwealth’s position in that extreme of a light, we do recognize that our
case law gives the Commonwealth significant control over the release of
discovery as defined in Pa.R.Crim.P. 573. Although Appellant argues that the
requested materials are not discoverable under the rule, the autopsy report
and arguably at least some of the other requested materials do constitute
discovery to be disclosed by the Commonwealth under Pa.R.Crim.P.
573(B)(1)(e)(f). The Commonwealth’s control over the disclosure of
discovery listed under those sections is further supported by our Supreme
Court’s holding in Buchanan, infra. Also, the Commonwealth is correct in
that the parties shall make a good faith effort to resolve discovery issues
informally before filing a motion pursuant to Pa.R.Crim.P. 573(A), and that
discovery is generally not available to an accused during the preliminary
hearing stage. Indeed, our Court has interpreted Pa.R.Crim.P. 573(A)’s
provision that a motion for discovery from a party “shall be made within 14
days after arraignment” as mandating that discovery motions must be filed
after the formal arraignment. Commonwealth v. Jackson, 785 A.2d 117,
119 (Pa. Super. 2001) (citing Commonwealth v. Sanders, 489 A.2d 207,
213 n.9 (Pa. Super. 1985)). As explained in Jackson, “[b]y waiting until after
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the formal arraignment, the parties and the trial court are better able to
ascertain the parameters of appropriate discovery.” Id. at 199 n.4. Thus, in
light of Buchanan and Jackson, we cannot conclude that it was an abuse of
discretion for the trial court to require a showing of reasonableness by
Appellant in order to receive the information prior to the preliminary hearing.
However, this case does not involve a motion for discovery served upon
the Commonwealth; it involves a subpoena duces tecum served upon a third
party. A subpoena duces tecum is presumed valid in criminal cases, and a
criminal defendant is entitled to request any potentially exculpatory, non-
privileged information. Commonwealth v. McClure, 172 A.3d 668, 695 (Pa.
Super. 2017). Furthermore, the comment to Pa.R.Crim.P. 107 states that “a
subpoena shall be used not only for trial but also for any other stage of the
proceedings when a subpoena is issuable, including preliminary hearings….”
Pa.R.Crim.P. 107, cmt. (emphasis added). See also Meija-Arias, 734 A.2d
at 874-875 (“[U]nder the constitution of the Commonwealth, an accused’s
rights of confrontation and compulsory process attach pre-trial.”) Thus, we
discern some tension between Pa.R.Crim.P. 573 and Pa.R.Crim P. 107.
Nonetheless, we find Pa.R.Crim.P. 573 controlling.
Pursuant to Pa.Crim.P. 573(F), the Commonwealth may seek a
protective order and bears the burden of making a sufficient showing of the
need for said order if it believes the discovery sought is improper or beyond
the scope of Rule 573. However, we reiterate that discovery is generally not
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available to a criminal defendant during the preliminary hearing stage.
Jackson, 785 A.2d at 119. Furthermore, it is unclear exactly what discovery
Appellant was seeking in this case, aside from the autopsy report. Some of
the requested discovery may be considered discretionary, for which the
defendant bears the burden of showing materiality and reasonableness under
Pa.R.Crim.P.573(B)(2), or outside the scope of discovery. Indeed, it is well
established that a defendant may not “search untrammeled through
Commonwealth files in order to argue the relevance of the materials found
therein.” Commonwealth v. Herrick, 660 A.2d 51, 61 (Pa. Super. 1995).
Under Pa.R.Crim.P. 573 and case law interpreting the rule, and giving full
consideration to a criminal defendant’s rights, we conclude that the burden
shifts to the defendant to show that any discovery sought prior to the
preliminary hearing is material to the preliminary hearing, and that the
request is reasonable. Thus, if the order had been directed solely to Appellant
in this case, we would conclude that the trial court did not abuse its discretion
in requiring a showing of reasonableness. However, to issue a blanket quashal
order without a hearing or giving Appellant an opportunity to respond and
meet his burden was an abuse of discretion and not “just under the
circumstances,” as required by Pa.R.Crim.P. 573(E).8 For this reason also,
the order must be reversed.
____________________________________________
8 Because we conclude that the trial court abused its discretion under
Pa.R.Crim.P 573(E), we decline to address Appellant’s fifth issue.
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Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2020
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