Com. v. Hamilton, R.

• Court: Superior Court of Pennsylvania
• Decided: January 22, 2021
• Docket: 290 WDA 2020
• Status: Unpublished

Opinion

J-S49029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROBERT W. HAMILTON : No. 290 WDA 2020

Appeal from the Order Entered February 14, 2020 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000498-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROBERT W. HAMILTON : No. 291 WDA 2020

Appeal from the Order Entered February 18, 2020 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000498-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROBERT W. HAMILTON : No. 292 WDA 2020

Appeal from the Order Entered February 14, 2020 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000498-2019 J-S49029-20

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 22, 2021

In this consolidated appeal, the Commonwealth appeals from two

pretrial Orders: a discovery Order and an Order denying without prejudice

the Commonwealth’s Motion for Tender Years Hearsay Act Hearing (“Tender

Years Motion”).1 Upon review, we dismiss this appeal

FACTUAL AND PROCEDURAL HISTORY

On September 27, 2019, the Commonwealth charged Robert W.

Hamilton (“Defendant”) with numerous sexually-based offenses against three

minor children after the children disclosed the alleged sexual abuse and

participated in recorded forensic interviews.

The Commonwealth filed a Tender Years Motion on January 3, 2020,

and an amended Motion on January 22, 2020, requesting to present evidence

of the children’s out-of-court disclosures and statements regarding the

incidents that led to Defendant’s charges.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The Commonwealth appeals from both the Order denying the Motion to Compel Discovery and the Order denying their Motion for Reconsideration. An appeal does not properly lie from an order denying reconsideration; the appeal must be from the order granting or denying relief in the first instance. Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). An order denying a motion for reconsideration is not appealable. Oliver v. Irvello, 165 A.3d 981, 983 n.1 (Pa. Super. 2017).

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The trial court scheduled a hearing for February 14, 2020. On February

11, 2020, Defendant filed a Motion to Compel Discovery and requested to view

six sentences that the Commonwealth had redacted from Defendant’s police

report. The Commonwealth filed an Answer, asserting that the redacted

information was privileged work product. The trial court scheduled a hearing

for February 13, 2020. After viewing the unredacted police report in

chambers, the trial court granted Defendant’s Motion to Compel and ordered

the Commonwealth to provide the unredacted documents to Defendant.2 On

February 14, 2020, the Commonwealth filed a Motion for Reconsideration,

which the trial court denied on the same day.

On February 14, 2020, at the start of the hearing on the Tender Years

Motion and after the court denied the Motion for Reconsideration, the

Commonwealth complied with the trial court’s discovery Order and handed

copies of the unredacted police report to Defendant on the record in open

court. After a hearing, the trial court denied the Tender Years Motion without

prejudice.

The Commonwealth timely appealed both pretrial decisions. Both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.

ISSUES RAISED ON APPEAL

The Commonwealth raises the following issues on appeal:

2This Order is dated February 13, 2020, but the trial court did not docket this Order until February 14, 2020.

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1. Whether the trial court erred in granting the defense Motion to Compel Discovery and ordered the Commonwealth to provide the materials without first requiring [D]efendant to show and the court finding that the materials are discoverable; are material to the preparation of the defense and is reasonable; or material to the guilt or punishment of [D]efendant as required by Rule 579 and/or Brady.

2. Whether the honorable court erred in ordering the Commonwealth to provide the unredacted pages to the defense.

3. Whether the honorable court erred in failing to allow the Commonwealth adequate time to argue its Motion for Reconsideration and in denying the Motion.

4. Whether the honorable court committed an error of law in failing to admit relevant Commonwealth evidence at the Tender Years hearing.

5. Whether the honorable court erred in its interpretation of the statute and finding that it “could never (rule on or grant) a Tender Years Motion” prior to trial.

6. Whether the trial court erred in failing to rule on the spontaneity, consistency, and other factors to determine the reliability of the statements.

7. Whether the trial court erred in failing to rule on whether the statements – or which statements – are testimonial or nontestimonial in nature – and, therefore whether admissible.

8. Whether the trial court erred in failing to rule on whether the statements would be admissible as long as the children testified and/or whether admissible under a different rule.

Commonwealth’s Br. at 9-10 (some capitalization omitted).

LEGAL ANALYSIS

As an initial matter, this Court must determine whether we have

jurisdiction to entertain this pretrial appeal. “In order for this Court to have

jurisdiction, an appeal must be from an appealable order.” Commonwealth

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v. Mitchell, 72 A.3d 715, 717 (Pa. Super. 2013). Our Rules of Appellate

Procedure define appealable orders as final orders, interlocutory orders as of

right, interlocutory orders by permission, and collateral orders. Id. (citing

Pa.R.A.P. 341; 311-313).

Tender Years Order

The Commonwealth asserts that this Court has jurisdiction to review the

Order denying the Tender Years Motion without prejudice as an interlocutory

order as of right pursuant to Pa.R.A.P. 311(d), and certified the same in its

Notice of Appeal. Commonwealth Br. at 1-3; Notice of Appeal, 2/24/20.

Rule 311(d) provides that “the Commonwealth may take an appeal as

of right from an order that does not end the entire case where the

Commonwealth certifies in the notice of appeal that the order will terminate

or substantially handicap the prosecution.” Pa.R.A.P. 311(d). “Accordingly,

when an order terminates or has the practical effect of terminating some or

all of the Commonwealth's case, or substantially handicaps the

Commonwealth's case, and the Commonwealth has certified the same in good

faith, the Commonwealth is entitled to an interlocutory appeal as of right

under Rule 311(d).” Commonwealth v. White, 910 A.2d 648, 655 (Pa.

2006).

Generally, the Commonwealth's good faith certification provides an

absolute right to appeal and the Commonwealth is not required to

demonstrate the need for any excluded evidence. Commonwealth v.

Brister, 16 A.3d 530, 534 (Pa. Super. 2011). Indeed, this Court has

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repeatedly held that when the Commonwealth appeals the suppression of

evidence, this Court is not permitted to “inquire into the Commonwealth’s

good[]faith certification” about whether the excluded evidence terminates or

substantially handicaps the prosecution. Commonwealth v. Moser, 999

A.2d 602, 605 n.2 (Pa. Super. 2010). “When a pretrial motion removes

evidence from the Commonwealth's case, only the prosecutor can judge

whether that evidence substantially handicaps his ability to prove every

essential element of his case.” Commonwealth v. Cosnek, 836 A.2d 871,

875 (Pa. 2003).

Where the pretrial Order in question does not involve permanently

excluding the admission of certain evidence from the Commonwealth’s case,

this Court need not accept the Commonwealth’s good faith certification. See,

e.g., Commonwealth v. Woodard, 136 A.3d 1003, 1007 (Pa. Super. 2016)

(rejecting blind acceptance of Commonwealth’s good faith certification

involving interlocutory appeal of order denying joinder because the

Commonwealth had an alternate remedy and was free to seek conviction in

three separate trials); Commonwealth v. Wright, 99 A.3d 565, 568 n.1 (Pa.

Super. 2014) (observing that “[w]hile the Commonwealth's good faith

certification under Rule 311(d) is entitled to some deference, this Court need

not accept its good faith certification in every case.”).

Here, the trial court denied the Commonwealth’s Tender Years Motion

without prejudice, providing the Commonwealth the opportunity to re-file

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the Motion prior to trial. In its Pa.R.A.P. 1925(a) Opinion, the trial court

explained:

Since the court dismissed the Commonwealth’s Motion[] “without prejudice,” instead [of] filing this appeal the Commonwealth could have simply renewed their Motion. Therefore, it is perplexing that the Commonwealth filed a certification with the Superior Court that “the above referenced Ruling at issue terminates or substantially handicaps the prosecution.”

Trial Ct. Op., filed 6/22/20, at 1. We agree. Despite the Commonwealth’s

certification to the contrary, because the court issued the Order without

prejudice, thereby allowing the Commonwealth to re-file its request further

into the proceeding, the Order does not have the practical effect of terminating

or substantially handicapping the prosecution. Accordingly, from a procedural

standpoint, the Order is not appealable as of right under Rule 311(d) and we,

thus, lack jurisdiction to entertain this appeal.

Discovery Order

The Commonwealth likewise avers that we have jurisdiction to review

the Order granting the Motion to Compel, and argues that it is a collateral

order. Commonwealth Br. at 1-3; Notice of Appeal, 2/24/20.

A collateral order is “one that (1) is separable from and collateral to the

main cause of action; (2) involves a right that is too important to be denied

review; and (3) presents a question, which is such that if review is postponed

until final judgment in the case, the claim will be irreparably lost.”

Commonwealth v. Minich, 4 A.3d 1063, 1067 (Pa. Super. 2010). See also

Pa.R.A.P. 313(b). All three prongs of the collateral order test must be satisfied

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in order for an appellate court to have jurisdiction over the

appeal. Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011).

“Generally, discovery orders are deemed interlocutory and not

immediately appealable, because they do not dispose of the litigation.”

McIlmail v. Archdiocese of Phila., 189 A.3d 1100, 1104 (Pa. Super. 2018).

However, discovery orders requiring disclosure of putatively privileged

materials are appealable under Rule 313 where the issue of privilege is

separable from the underlying issue because “if immediate appellate review is

not granted, the disclosure of documents cannot be undone and subsequent

appellate review would be rendered moot.” Id. “[T]here is no question that

if the documents which have been disclosed to [a party] are in turn

disseminated by [the party]’s attorney to other individuals and entities,

appellate review of the issue will be moot because such dissemination cannot

be undone.” Dibble v. Penn State Geisinger Clinic, Inc., 806 A.2d 866,

870 (Pa. Super. 2002). In other words, “[o]nce putatively privileged material

is in the open, the bell has been rung, and cannot be unrung[.]” Harris, 32

A.3d at 249. Accordingly, orders overruling putative claims of privilege and

requiring disclosure are immediately appealable under Pa.R.A.P. 313 to allow

for “immediate correction by an appellate court.” Id. at 250-51.

Instantly, the Order granting Defendant’s Motion to Compel is a

discovery order requiring the disclosure of putatively privileged information,

which is appealable under Rule 313 as a collateral order. However, in this

case, the Commonwealth has already provided the unredacted documents to

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Defendant. The Commonwealth provided the putatively privileged documents

to Defendant prior to filing a Notice of Appeal, and the timing rendered this

appeal moot because such dissemination cannot be undone. There is nothing

for this court to correct. “This Court may not provide advisory opinions to

address issues that may arise in future cases.” Commonwealth v. Enix, 192

A.3d 78, 84 n. 5 (Pa. Super. 2018). Accordingly, while the discovery Order is

appealable as a collateral order, appellate review is rendered moot because

the Commonwealth already disseminated the putatively privileged

documents.3

CONCLUSION

In sum, we are without jurisdiction to review the Tender Years Order,

and appellate review of the discovery Order is moot. Accordingly, we are

constrained to dismiss this appeal.4

Appeal dismissed.

3 As appellate review of the discovery Order is moot, we decline to address whether the putatively privileged redacted content did, in fact, qualify as privileged.

4 In light of our disposition, we decline to address the merits of the Commonwealth’s issues on appeal.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/22/2021

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