Com. v. Kennedy

• Decision Date: 21 June 2005
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David R. KENNEDY, Appellant.
• Court: Pennsylvania Supreme Court

876 A.2d 939

583 Pa. 208

COMMONWEALTH of Pennsylvania, Appellee, v. David R. KENNEDY, Appellant.

Supreme Court of Pennsylvania.

Argued March 1, 2004.

Decided June 21, 2005.

Cynthia L. Reed, Esq., William F. Manifesto, Esq., Pittsburgh, for David R. Kennedy.

Michael Wayne Streily, Esq., Pittsburgh, for Commonwealth of Pennsylvania.

BEFORE: RALPH J. CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Chief Justice CAPPY.

In this appeal by allowance, our Court is presented with two issues: whether the challenged trial court order, in which the court denied Appellant's Motion to Quash and/or Withdraw Subpoena, is an appealable collateral order; and, if so, whether the court erred in denying Appellant's motion. For the reasons expressed below, we hold that the trial court's order is an appealable collateral order and that the court erred when it denied Appellant's Motion to Quash and/or Withdraw Subpoena. Accordingly, we vacate the order of the Superior Court, reverse the order of the trial court, and remand the case to the trial court for further proceedings.

The facts relevant to this appeal are not in dispute. On March 27, 1977, the body of Debbie Capiola was found in the woods in Robinson Township, close to the border of Allegheny and Washington Counties. Upon discovery of the victim's body, blue jeans were found wrapped around her neck. An autopsy revealed that the victim's cause of death was strangulation. It was later determined that the jeans had a spermatozoa stain on them.

In early 2000, the Commonwealth submitted the jeans and a blood sample from Appellant, which was obtained pursuant to a search warrant, to Cellmark Diagnostics, Inc. ("Cellmark") for DNA analysis. The results of the test inculpated Appellant. Thereafter, the Pennsylvania State Police obtained an arrest warrant for Appellant, and Appellant surrendered himself to the State Police. The Commonwealth subsequently charged Appellant with one count of criminal homicide, 18 Pa.C.S. § 2501(a).

Appellant's trial was set to begin in August of 2001 in the Court of Common Pleas for Allegheny County, Criminal Division. Prior to trial and in response to Appellant's informal request for discovery, the Commonwealth provided Appellant with the DNA test results from Cellmark. Appellant then filed an Omnibus Pre-trial Motion, which included, in pertinent part, a Motion for Pre-trial Discovery in which he sought permission to have the blue jeans sent to The Bode Technology Group, Inc. ("Bode") for DNA analysis.¹ In addition, Appellant filed a Motion for an Order Authorizing Release of Evidence for Independent Testing in which he requested that the Commonwealth be required to package the jeans and to send them to Bode for testing. The trial court granted these motions and permitted Appellant to have a blood sample drawn and sent to Bode as well. As a result, the jeans and blood sample were delivered to Bode. Bode completed its testing procedures and returned the jeans to the Commonwealth.

On August 6, 2001, the Commonwealth filed a "Petition for Certificate Directing Appearance of Out-of-State Witness and a Memorandum of Law in Support Thereof" ("Petition") pursuant to the Uniform Act to Secure the Attendance of Witnesses Within or Without a State in Criminal Proceedings, 42 Pa.C.S. § 5961 et seq. In the Petition, the Commonwealth sought to have the court issue a Certificate directing Suzanna Ulery, an employee of Bode, "to appear and testify as a witness" in Appellant's trial. Petition at ¶ 8. In addition, the Commonwealth asked the court to direct the following: "a copy of any and all data, test results and/or reports compiled by [Bode] when conducting its analysis of the evidence in question to be forwarded to the Commonwealth." Petition at ¶ 8. According to the Petition, the Assistant District Attorney for Allegheny County contacted Ms. Ulery in August of 2001 and requested a copy of her report concerning the DNA analysis of the relevant evidence. Additionally, the Commonwealth asserted that Ms. Ulery informed the Assistant District Attorney that no report was ever written and that she was unable to provide the Commonwealth with the results of her analysis without the consent of Appellant's counsel, which counsel had refused to provide.

It also appears from the record that the Commonwealth filed a second Petition ("Second Petition"), which it simply entitled "Petition for Certificate Directing Appearance of Out-of-State Witness." This Second Petition contains less content than the first, and the Commonwealth did not attach a Memorandum of Law to the Second Petition. In the Second Petition, the Commonwealth averred that Ms. Ulery's attendance or the attendance of a Bode representative is required at Appellant's trial, that Ms. Ulery or a Bode representative is a material witness in this case, and that by enacting the Uniform Act to Secure Attendance of Witnesses Within or Without a State, the Commonwealth of Virginia "has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in the Commonwealth of Pennsylvania." Second Petition at ¶¶ 2, 3, and 7. The record is not clear as to when the Commonwealth filed the Second Petition.

On August 7, 2001, the trial court signed a Certificate. The Certificate indicates that Ms. Ulery or a Bode representative is "a necessary and material witness for the Commonwealth of Pennsylvania in the presentation of their case in chief...." Certificate at ¶ 3. In delineating the purpose of the Certificate, the court stated the following:

That this certificate is made for the purposes of being presented to a Judge of the Superior Court, Criminal Division, in and for the County of Fairfax, Commonwealth of Virginia; where Susanna R. Ullery is, for proceedings to compel Suzanna Ullery to attend and testify at the trial in the criminal prosecution before this court in the Commonwealth of Pennsylvania on August 9, 2001 at 9:30 as a material witness in that trial.

Certificate at ¶ 7 (emphasis added).

Appellant then filed a Motion to Quash and/or Withdraw Subpoena ("Motion to Quash"). According to this Motion, Appellant's counsel provided the Commonwealth with Appellant's witness list and informed the Commonwealth that Appellant did not intend to call any expert witness at trial. In the Motion to Quash, Appellant asserted that "[t]he purpose of the Commonwealth's subpoena at issue was to subpoena the records and reports of [Bode], as well as to secure the results of DNA testing, which [Bode] has performed as an agent to assist defense counsel in providing legal services and advice to [Appellant] and to assist [counsel] in preparation for trial." Motion at ¶ 6. As such, Appellant opposed the issuance of the subpoena based on the attorney-client privilege, the work-product doctrine, and Appellant's constitutional rights to effective assistance of counsel and against compelled self-incrimination. The trial court denied Appellant's Motion to Quash on the same day.² In response, Appellant filed a Notice of Appeal, informing the trial court that he was appealing the court's order denying his Motion to Quash.

In his appeal to the Superior Court, Appellant argued that the challenged trial court order is appealable as a collateral order pursuant to Pennsylvania Rule of Appellate Procedure 313. Rule 313, entitled "Collateral Orders," states as follows:

(a) General Rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.

(b) Definition. A collateral order is 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.

In an unpublished opinion, a majority of the Superior Court panel disagreed with Appellant that the trial court order meets all of the requirements for a collateral order under Rule 313. The majority assumed that the order meets the first two requisites for a collateral order under Rule 313, i.e., that the order is separable from and collateral to the main cause of action and that the right involved is too important to be denied review. The majority, however, found that the order fails to meet the Rule's final requirement for a collateral order, i.e., that if review of the question presented is postponed until final judgment in the case, then the claim will be irreparably lost. Based on this determination, the majority quashed Appellant's appeal as interlocutory.

The Honorable Judge Richard B. Klein filed a dissent. The dissent would have found that the challenged order is collateral and, thus, appealable under Pa.R.A.P. 313. As to the legal issue underlying the order, the dissent would have determined that the trial court could not compel Ms. Ulery to testify for the Commonwealth and, therefore, would have reversed the trial court's order denying Appellant's Motion to Quash.

Following the Superior Court's quashal of Appellant's appeal, Appellant petitioned this Court for allowance of appeal, which we granted.³

In his appeal to our Court, Appellant argues that the challenged trial court order meets the three requirements for a collateral order under Pa.R.A.P. 313. Moreover, Appellant contends that the Superior Court's determination to the contrary is at odds with this Court's decision in Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999). Interestingly, the Commonwealth agrees with Appellant.

Regardless of the parties' agreement as to the appealability of the challenged order, whether an order is appealable as a collateral order under Rule 313 is an issue of this Court's jurisdiction to entertain an appeal of such an order. Therefore, we must make an independent determination as to whether the order is appealable...