Commonwealth v. Alston

• Decision Date: 26 May 2020
• Docket Number: No. 1530 WDA 2018,1530 WDA 2018
• Citation: 233 A.3d 795
• Parties: COMMONWEALTH of Pennsylvania v. Calvin Stewart ALSTON, Appellant
• Court: Pennsylvania Superior Court

233 A.3d 795

COMMONWEALTH of Pennsylvania

v.Calvin Stewart ALSTON, Appellant

No. 1530 WDA 2018

Superior Court of Pennsylvania.

Argued October 22, 2019

Filed May 26, 2020

Brandon P. Ging, Public Defender, Pittsburgh, for appellant.

Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

OPINION BY SHOGAN, J.:

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, 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 24^th 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.

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 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 884 (Pa.Super. 2018) ; 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 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 , 632 Pa. 260, 119 A.3d 306, 312 (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 , 644 Pa. 571, 177 A.3d 850, 855 (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 , 624 Pa. 405, 86 A.3d 771, 781 (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 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 , 583 Pa. 208, 876 A.2d 939 (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. 2014). Appellant argues that the third prong is also satisfied because if he is successful in his defense, his claim will be rendered moot. Appellant's Brief at 36 (citing Commonwealth v. Sanchez , 623 Pa. 253, 82 A.3d 943 (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...