Com. v. Mejia-Arias

• Decision Date: 14 June 1999
• Parties: COMMONWEALTH of Pennsylvania v. Euleterio MEJIA-ARIAS. Appeal of Attorney General, Subpoenaed Witness, Appellant.
• Court: Pennsylvania Superior Court

734 A.2d 870

COMMONWEALTH of Pennsylvania v. Euleterio MEJIA-ARIAS.

Appeal of Attorney General, Subpoenaed Witness, Appellant.

Superior Court of Pennsylvania.

Argued September 22, 1998.

Filed June 14, 1999.

Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for appellant.

Bradley S. Bridge, Asst. Public Defender, Philadelphia, for Mejia-Arias, appellee.

Before FORD ELLIOTT and STEVENS, JJ., and CERCONE, President Judge Emeritus.

FORD ELLIOTT, J.:

¶ 1 The Attorney General asks us to decide whether a defendant may subpoena the personnel files of Bureau of Narcotics Investigation ("BNI")¹ officers who participated in his arrest. The trial court refused to quash the subpoenas at issue in this case. While we agree with the trial court that defendant/appellee was entitled to review certain information in the files, we also find that the subpoenas, as drafted, were overly broad. As a result, we vacate the trial court's order and remand. The background necessary to decide this issue follows.

¶ 2 Narcotics Agent Charles Micewski of the BNI arrested appellee on January 24, 1996 after searching his residence pursuant to a residential search warrant and discovering approximately 300 grams of cocaine. (Notes of testimony, 2/22/96 at 5-10.) The affidavit of probable cause pursuant to which the search warrant was issued was based on information provided by Agent Micewski. Narcotics Agent John McLaughlin was also involved in appellee's arrest. (R. at D-2.)

¶ 3 After learning that the Philadelphia District Attorney's Office was dismissing a large number of cases involving Agents Micewski and McLaughlin, appellee caused to be issued two subpoenas duces tecum requesting, inter alia, the personnel and investigation files regarding the two agents. (R.R. at 1a, 3a.) The second subpoena, issued on October 1, 1996, also requested production of a document described as "the Eric Noonan Report." (R.R. at 3a.)

¶ 4 The Attorney General filed a motion to quash the subpoenas. On December 23, 1996, the Honorable Myrna Field denied the Attorney General's motion to quash and ordered both the Attorney General's Office and the Philadelphia Police Department to permit defense counsel to examine the personnel and investigatory files of the agents, subject to a confidentiality agreement.² (R.R. at 4a.) The Attorney General's Office did not comply with this order.

¶ 5 On January 17, 1997, the court amended its December 23, 1996 order and granted the Attorney General's motion to quash with respect to the "Noonan Report" only, while continuing to allow defendants³ to examine the personnel files, subject to the restrictions delineated in the December 23, 1996 order. (R.R. at 5a.) On January 22, 1997, the Attorney General filed an application to amend the Order of January 17, 1997, to contain language specified at 42 Pa.C.S.A. § 702(b); namely, that the "order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter...." (R. at D-9, quoting 42 Pa.C.S.A. § 702(b).) This application was denied by order entered February 11, 1997. (R.R. at 6a.) The Attorney General then filed a petition for review in this court pursuant to Chapter 13 of the Rules of Appellate Procedure. Permission for review was granted by order entered May 14, 1997. (R.R. at 7a.) We thus have jurisdiction to entertain this appeal.

¶ 6 The Attorney General presents the following issue for our review:

In the absence of a specific request for information bearing on a specific charge or defendant, or legitimately affecting the credibility of a witness, should defense counsel have carte blanche to examine the personnel files of law enforcement agents?

Appellant's brief at 4. The simple answer to this inquiry is "No." As is frequently the case, however, the proper resolution of such questions is generally not so simple.

¶ 7 The Attorney General does not dispute the District Attorney's testimony that he nol prossed 53 cases in which Agent McLaughlin was an essential witness based on information that Agent McLaughlin may have lied in a search warrant.⁴ Nor does the Attorney General dispute that the District Attorney nol prossed 60 cases involving Agent Micewksi. Instead, the Attorney General argues that its personnel files were not used by the District Attorney's office in deciding which cases to nol pros, and that these files are therefore not Brady⁵ material. (Appellant's brief at 15.) To establish a framework within which to consider whether or when appellee is entitled to review the personnel files, we must first consider the purposes for which he sought review.

¶ 8 Appellee initially sought the BNI officers' personnel files for two purposes. The first was to support an equal protection challenge based on the District Attorney's allegedly arbitrary decision to nol pros numerous cases involving the two BNI agents while pursuing its prosecution of appellee. Appellee subsequently dropped this basis for seeking the files. (Appellee's brief at 12.) ¶ 9 The second purpose was to challenge the affidavit of probable cause supporting the search warrant by impeaching the BNI officers' credibility. (Id. at 12-13.) Appellee sought evidence that the BNI agents "fabricated or lied about probable cause, committed perjury, etc., in this and in other cases." (Id. at 15.) In particular, appellee's counsel sought to learn the names of witnesses who could testify as to the officers' pattern or practice of lying in order to obtain search warrants. (Id. at 14.) If the files contained such evidence, it could be exculpatory. See Commonwealth v. Herrick, 442 Pa.Super. 412, 660 A.2d 51, 60 (1995)

("Exculpatory evidence is evidence that is material to a determination of guilt or innocence or affects the credibility of key prosecution witnesses. Moreover, evidence of fabrication is always exculpatory[ ]"), appeal denied, 543 Pa. 710, 672 A.2d 305 (1996) (citations omitted). See also Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970) (holding that where a police officer-affiant made untrue or misleading statements in the affidavit of probable cause, the warrant was invalid and the use of evidence resulting from the search based thereon was constitutionally proscribed).

¶ 10 Furthermore, in Pennsylvania, a defendant may attack the reliability of an affidavit of probable cause without first showing the potential falsity of the facts recited in the affidavit. Commonwealth v. Hall, 451 Pa. 201, 206-09, 302 A.2d 342, 345-346 (1973). See also Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986)

(distinguishing the Pennsylvania Hall rule from federal law which requires a substantial preliminary showing of falsity before a defendant is entitled to an evidentiary hearing on the issue of veracity).

¶ 11 The Attorney General argues, however, that the agents' personnel files are irrelevant because the Commonwealth has clearly expressed its intention not to call Agent McLaughlin as a witness.⁶ (Appellant's brief at 16, 21.) Whether the Commonwealth calls the agents as witnesses or not, however, appellee is certainly entitled to call them as if on cross-examination at a suppression hearing. Clearly, the officers' truthfulness in swearing out the affidavit of probable cause supporting the search warrant that led to appellee's arrest is relevant to the charges against him; without the evidence seized during the search, the Commonwealth would not have had probable cause to arrest appellee. See D'Angelo, supra.

¶ 12 Nevertheless, we agree with the Attorney General that the personnel files may not be Brady material if they are not material within the possession or control of the Commonwealth, i.e., the District Attorney, as required by Pa.R.Crim.P. 305B(1)(a). Commonwealth v. McElroy, 445 Pa.Super. 336, 665 A.2d 813, 818 (1995),appeal denied, 544 Pa. 610, 674 A.2d 1073 (1996).⁷ Even if the personnel files are not Brady material, however, "under the constitution of this Commonwealth, an accused's rights of confrontation and compulsory process attach pre-trial."⁸Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036, 1044 (1992) (en banc), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992). Therefore, because appellee is seeking witnesses in his favor, i.e., witnesses from other cases involving the BNI officers responsible for his arrest in which the officers allegedly fabricated the facts underlying an affidavit, appellee has asserted that due process, compulsory process, and the right to present a defense require that he have access to the subpoenaed material. Id. See also Commonwealth v. French, 531 Pa. 42, 52-53, 611 A.2d 175, 180 (1992)

(denying defendant access to pre-trial statements of police officer/witnesses found in Internal Investigation Division files violated confrontation clause rights); Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989) (denying defense counsel in camera access to contents of victim's non-privileged psychotherapeutic records in possession of hospital violated his compulsory process and confrontation clause rights under the Pennsylvania Constitution); Commonwealth v. Davis, 437 Pa.Super. 471, 650 A.2d 452, 460 (1994) (defendant's compulsory process and confrontation clause rights were violated when he was denied access to the victim's records prepared by a sexual assault counselor who was called as a witness by the Commonwealth ), affirmed, 543 Pa. 628, 674 A.2d 214 (1996).⁹

¶ 13 Furthermore, contrary to the Attorney General's assertions, a subpoena duces tecum was the proper means to secure information in the personnel files. See McElroy, 665 A.2d at 820-821

(material not discoverable pursuant to Pa. R.Crim.P. 305 may be secured through the service of a subpoena duces tecum upon the appropriate Commonwealth agency); Davis, 650 A.2d at 458 (finding no error in defendant's causing a subpoena duces tecum to be issued...