Com. v. Alston, C.

2020 Pa. Super. 123

• Court: Superior Court of Pennsylvania
• Decided: May 26, 2020
• Docket: 1530 WDA 2018
• Status: Published

Opinion

J-A26009-19

2020 PA Super 123

COMMONWEALTH 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,

____________________________________________

1 18 Pa.C.S §§ 2501(a), 4910(1), 6105(a)(1), and 6106 (a)(1), respectively. J-A26009-19

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. ____________________________________________

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 ____________________________________________

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

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

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.

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.

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).

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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