Commonwealth v. Hemingway, 13 A.3d 491

Background

Commonwealth appeals a trial court order precluding 34 witnesses from testifying for failure to provide grand jury transcripts by July 6, 2009 under a Feb. 27, 2009 pretrial agreement.
Pretrial conference produced a written agreement that transcripts would be provided to defense by July 6; failure to comply could result in preclusion.
May 28, 2009: Pennsylvania Supreme Court directed that applications for grand jury disclosures be addressed to Supervising Judge Feudale; April 15, 2009 order to disclose within 10 days was stayed by the Supreme Court.
Commonwealth ultimately produced transcripts on July 10, 2009; defense timely moved in limine July 10–13 to enforce the February 27 order.
Trial court precluded 34 grand jury witnesses; Commonwealth appealed asserting lack of subject matter jurisdiction, violation of law-of-the-case, and abuse of discretion.
Superior Court reverses, holds the Commonwealth substantially complied with the Feb. 27 order, and that preclusion was an excessive sanction; remands for proceedings consistent with the opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Subject matter jurisdiction to sanction	Commonwealth contends trial court lacked jurisdiction to sanction for failing to disclose under supervising judge's authority.	Hemingway argues trial court lacked power to sanction without a Feudale order; Feb. 27 agreement was not within trial court's purview.	Issue without merit; trial court had jurisdiction to enforce the Feb. 27 order.
Law of the case	Commonwealth argues May 28 Supreme Court order forecloses reliance on a separate trial-court sanction.	CDO suggests the May 28 order precludes such sanction posture; law-of-the-case applies.	Waived and meritless; law-of-the-case discussion not controlling here.
Abuse of discretion in precluding witnesses	Commonwealth asserts substantial compliance and less drastic remedies were available.	Styers/Gearhart contend sanction was within trial court's discretion given noncompliance.	Abuse of discretion; preclusion reversed.
Effectiveness of the Feb. 27 order	Commonwealth maintains the agreement was properly enforceable and properly reduced to writing.	Styers contends the trial court overstepped by enforcing a pretrial agreement via order.	Reversed to reflect substantial compliance and improper sanctions; remand for further proceedings.
Discretionary timing under Rule 230	Commonwealth argues timing of disclosure can be set by pretrial agreement and court order.	Defense emphasizes supervising judge's exclusive control and statutory constraints on disclosure.	Remanded; affirmed that timing must respect supervising judge's exclusive jurisdiction; sanction revisited.

Key Cases Cited

Commonwealth v. Cascardo, 981 A.2d 245 (Pa. Super. 2009) (pretrial disclosures under agreed-upon transcripts)
Commonwealth v. Rickabaugh, 706 A.2d 826 (Pa. Super. 1997) (discovery disclosures and grand jury transcripts)
In re Investigating Grand Jury of Phila. County, 496 Pa. 452 (1979) (importance of secrecy of grand jury proceedings)
In re Investigating Grand Jury of Phila. County, 437 A.2d 1130 (Pa. 1981) (scope and disclosure limits under Grand Jury Act)
Commonwealth v. Lang, 517 Pa. 390 (1988) (discovery principles and related procedures)
Commonwealth v. Millhouse, 470 Pa. 512 (1977) (discovery and grand jury considerations)
Commonwealth v. Shaffer, 551 Pa. 622 (1998) (dismissal as extreme sanction for discovery violations)
Commonwealth v. Smith, 955 A.2d 391 (Pa. Super. 2008) (discovery sanctions and appellate review)
Commonwealth v. Boczkowski, 577 Pa. 421 (2004) (equivalent of dismissal under discovery sanctions)
Commonwealth v. Locust Twp., 600 Pa. 533 (2009) (subject-matter jurisdiction non-waivable)
Commonwealth v. Starr, 541 Pa. 564 (1995) (law-of-the-case doctrine definition)