COMMONWEALTH of Pennsylvania, Appellant v. James DENNIS, Appellee
No. 31 EAP 2001
Supreme Court of Pennsylvania
Decided Oct. 21, 2004
Resubmitted Sept. 27, 2004
859 A.2d 1270
BEFORE: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice NEWMAN.
The Commonwealth of Pennsylvania appeals from an Order of the Court of Common Pleas of Philadelphia County (PCRA court) directing the Commonwealth to provide to James Dennis (Dennis) the voir dire notes of the prosecutor from the 1992 trial of Dennis. For the reasons discussed herein, we reverse the Order of the PCRA court and remand the matter to that court to consider the remainder of Dennis’ Post-Conviction Relief Act (PCRA)1 Petition.
FACTS AND PROCEDURAL HISTORY2
At approximately 1:50 p.m. on October 22, 1991, seventeen-year-old Chedell Williams (Williams) and her friend, Zahra Howard (Howard), were climbing the steps to enter the Fern Rock SEPTA station at Tenth and Nedro Streets in Philadelphia when Dennis and another man approached them. The men blocked the girls’ path and Dennis demanded that Williams give him her earrings. The girls turned and ran. Dennis followed Williams and grabbed her in the street. He ripped the earrings from Williams’ ears, drew a .32 caliber handgun, and shot her in the neck, killing her.
Three witnesses had protracted and unobstructed views of Dennis during and after the shooting: (1) Howard observed the shooting from a nearby fruit vendor‘s stand; (2) Thomas Bertha (Bertha), a stone mason who was working on a nearby building, heard the gunshot and saw Dennis flee the scene;
At the ensuing jury trial, the Commonwealth presented the testimony of the three eyewitnesses, as well as evidence that Dennis had a gun of the type used in the murder and clothing resembling that worn by the perpetrator. Dennis argued that the eyewitnesses had misidentified him, and claimed that he was on a bus to the Abbottsford Homes at the time of the murder. The jury returned verdicts of guilty on charges of first-degree murder, robbery, conspiracy, a violation of the Uniform Firearms Act,
The Commonwealth sought the death penalty on the basis of two aggravating circumstances: (1) that Dennis committed a killing while in the perpetration of a felony;3 and (2) that, in the commission of the offense, Dennis knowingly created a grave risk of death to another person in addition to Williams.4 Defense counsel raised three mitigating factors: (1) that Dennis had no significant history of prior criminal convictions;5 (2) Dennis’ age at the time of the crime (twenty-one);6 and (3) the general mitigating factor of his character and record (the catchall mitigator).7 The jury found the existence of one aggravating circumstance, namely that Dennis committed the murder while in the perpetration of a felony, and one mitigating circumstance, specifically that Dennis had no significant history of prior criminal convictions. The jury determined that the aggravating circumstance outweighed the mitigating circumstance and, accordingly, the trial court sentenced Dennis to death. Dennis filed Post-Verdict Motions, which the trial court denied, and then appealed to this Court.
On December 1, 2000, Dennis filed his first counseled Petition pursuant to the PCRA. In his Petition, Dennis claimed, inter alia, that he should receive a new trial because King discriminated against members of the venire pool on the basis of race. On December 12, 2000, Dennis filed a Motion for Discovery, pursuant to
As bases for exercising subject-matter jurisdiction, the Commonwealth argued that this Court should treat its appeal as a Petition for Review (requiring permission of the appellate court), as an appealable collateral order, or, alternatively, assume plenary jurisdiction pursuant to our Kings Bench powers articulated in
Whether this Court may treat the present appeal as a Petition for Review pursuant to
Pennsylvania Rule of Appellate Procedure 1503 or treat the Discovery Order as an appealable collateral order pursuant toPennsylvania Rule of Appellate Procedure 313 and thus exercise jurisdiction over the matter?
Commonwealth v. Dennis, 31 EAP 2001 (Pa. March 5, 2003) (per curiam) (Dennis II). Oral argument proceeded on April 10.
DISCUSSION
In Tilley, the PCRA court, per the same judge as in the present matter, entered an Order substantially the same as the Discovery Order entered in the case sub judice. The Commonwealth objected to the Order for the same reasons as presently, specifically that Tilley had not established good cause for the discovery and that the information was protected by the work-product privilege of the prosecutor. In Tilley, the Commonwealth asked the PCRA court to certify the interlocutory order for appeal pursuant to
When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such 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, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.
The PCRA court refused certification, prompting the Commonwealth to file a Notice of Appeal to this Court, requesting that we accept jurisdiction to review the merits of the matter as a Petition for Review.
An appeal from an interlocutory order will be permitted only if: “(1) the order involves a controlling question of law; (2) there is a substantial ground for difference of opinion regarding the question of law; and (3) an immediate appeal would materially advance the ultimate termination of the matter.” Tilley, 780 A.2d at 651;
In Tilley, we held that the PCRA court improperly refused to certify its discovery order for appeal to this Court because: (1) Tilley‘s entitlement to the Commonwealth‘s records regarding jury selection involved a controlling question of law; (2) the lack of case law on the issue demonstrated a “substantial ground for a difference of opinion[;]” and (3) as all of Tilley‘s other PCRA claims were on hold pending the disposition of this issue, resolution of his case would be materially advanced by accepting the appeal. Tilley, 780 A.2d at 651-652, 652 n. 5. Thus, we accepted jurisdiction, concluding that the PCRA court abused its discretion in not certifying the interlocutory order for appeal.
On the merits, we sustained the Commonwealth‘s appeal from the discovery order, concluding that, at the time of Tilley‘s trial in 1987, the law did not allow a white defendant to claim successfully that the Commonwealth improperly used its peremptory challenges to remove African-American potential jurors from the venire. Because Tilley was white, but was challenging the removal of African-Americans, we reasoned
Before we can entertain the propriety of the Discovery Order entered in the case sub judice, we must first determine whether we even have jurisdiction to consider the substance of the claims of the Commonwealth. The current jurisdictional problem is that the Commonwealth originally filed a request for certification, but the PCRA court never ruled on that request because it vacated the Discovery Order and granted reconsideration. The court later reinstated the Discovery Order, but the Commonwealth never took any action to reintroduce or reinstate its request for certification. Instead, the Commonwealth filed the instant appeal to this Court, without giving the PCRA court an opportunity to determine whether it wished to certify the Discovery Order for appeal.
The Commonwealth argues that it complied with the dictates of Tilley in order to enable this Court to rule on its Petition for Review.12 Specifically, it notes that it filed a
Irrespective of whether or not the Commonwealth, in its subjective judgment, deems an action “futile,” our rules governing appellate procedure make it abundantly clear that to be entitled to file a Petition for Review in an appellate court, the Commonwealth must ask the trial court for permission to appeal. Although the Commonwealth filed such a request originally, the vacatur of the Discovery Order on reconsideration rendered the Petition for Permission to Appeal moot. It is important to note, as well, that the Commonwealth was the party seeking reconsideration in the PCRA court, so the decision of the PCRA court to grant reconsideration inured to its requested benefit. The Commonwealth has provided no authority to support its position that reinstatement of the Discovery Order somehow reinstated the Petition for Permission to Appeal. The Commonwealth‘s failure to re-file its request for certification of an interlocutory appeal requires us to refuse to accept jurisdiction of this matter as a Petition for Review.
Having concluded that we cannot assert jurisdiction over this matter within the ambit of a Petition for Review, we must ascertain whether the collateral order doctrine permits
of a document appropriately termed a Petition for Review must be treated as a Petition for Review.
(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.
This case presents some similarities to Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999), where the plaintiffs alleged that Dr. Schwartz committed dental malpractice. The plaintiffs subpoenaed the Bureau of Professional and Occupational Affairs (Bureau) for production of the investigative file, compiled by the Bureau, pertaining to complaints filed against Dr. Schwartz. The Bureau asserted governmental and executive privilege and the doctor-patient privileges of Dr. Schwartz’ other patients. Nevertheless, the trial court directed the Bureau to produce the investigative file. After the Commonwealth Court quashed the Bureau‘s appeal as interlocutory, this Court concluded that the discovery order was reviewable as a collateral order.
Discussing the first requirement of separability, we held that the issue of privilege was separate from the merits of the
In the present matter, the question posed by the Commonwealth, whether the PCRA court properly permitted discovery of King‘s notes, is clearly separable from the global contention raised by Dennis that he is unfairly incarcerated and awaiting execution. Our review of the propriety of the Discovery Order is not inextricably entangled with the resolution of the PCRA Petition such that we cannot separate out the Discovery Order for collateral review. While our disposition of the PCRA Petition may ultimately turn on the decision whether or not to grant discovery, the threshold issue of entitlement to discovery does not turn on the resolution of the Petition.
Passing over the importance requirement for the moment, we have held that “[t]here is no effective means of reviewing after a final judgment an order requiring the production of putatively protected material.” Ben, 729 A.2d at 552 (internal quotation omitted). Just as the Bureau‘s claims would be effectively precluded if review of the order permitting discovery were postponed until final judgment in that case, the Commonwealth‘s assertion of work-product privilege in the case sub judice will be irreparably lost if we do not permit collateral review here.
Thus, the crux of the inquiry becomes the second prong of the collateral order doctrine, namely whether the right involved is too important to be denied review. In the instant matter, the Commonwealth‘s interest is in protecting its own work product. “For purposes of defining an order as a collateral order under Rule 313, it is not sufficient that the
It is beyond question that the exercise of a privilege is an important right deeply rooted in public policy. The work product doctrine is one of the most fundamental tenets of our system of jurisprudence and, though Dennis presently would argue otherwise, inures most notably to the benefit of criminal defendants. In addition, the right of a defendant to discovery of a prosecutor‘s pre-trial and trial notes, in order to establish a claim of misconduct is one that clearly impacts individuals other than King and Dennis. The roadblock to concluding that this issue satisfies the importance prerequisite is the existence of Tilley.
In Tilley, we held that a PCRA petitioner could not demonstrate “good cause” for discovery of a prosecutor‘s notes to develop a claim of racial bias during jury selection. However, we based that decision on the fact that Tilley was Caucasian and had been tried in 1987, four years before the advent of Powers. Because Powers for the first time gave a Caucasian defendant the right to dispute race-based peremptory venire pool challenges, and because the United States Supreme Court had not declared that Powers was to apply retroactively, we held that Tilley could not mount such a challenge. Tilley does not control the present matter because Dennis is African-American and was tried after Batson, which means that he did have the right to allege that King impermissibly used the Commonwealth‘s peremptory challenges to exclude African-American jurors. Thus, facially, accepting jurisdiction of this matter would provide our Court with an opportunity to explain the substance of the “good cause” requirement for discovery as it relates to a claim brought pursuant to Batson and its progeny. Accordingly, we conclude that the
Nevertheless, we cannot decide this matter on substantive grounds. The simple fact is that Dennis presented to this Court on direct appeal a contention that King‘s use of peremptory challenges violated Batson and that his trial counsel was ineffective for failing to raise the issue at the time of jury selection. We discussed and rejected the argument as follows:
In voir dire, the prosecutor exercised twenty peremptory challenges, dismissing thirteen African-American venirepersons, two Hispanic venirepersons, and five Caucasian venirepersons. [Dennis] argues that the prosecutor‘s use of peremptory challenges violated [Batson] and that trial counsel was ineffective for failing to raise this issue. This argument is meritless. In the first instance, [Dennis] fails to indicate the race of forty-seven of the 170 venirepersons. Without such information, there is no basis for a [Batson] claim. See, e.g., Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 102 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996) [(“[i]n order to establish prima facie case on Batson claim, defendant must make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury“)]. Furthermore, [Dennis] offers no evidence that the prosecutor exhibited racial animus in striking African-American venirepersons. Indeed, the impaneled jury included four African-American jurors and one African-American alternate, which indicates a lack of racial animus. Trial counsel was not ineffective for failing to raise a plainly baseless Batson claim.
Dennis I, 715 A.2d at 409 (internal citations modified). In order to be entitled to relief pursuant to the PCRA, a petitioner must demonstrate by a preponderance of the evidence “[t]hat the allegation of error has not been previously litigated or waived.”
The PCRA court relied on Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717 (2000), to overcome the “previously litigated” bar. In Basemore, we noted that “this Court has generally enforced a requirement of a full and complete record of the asserted violation, as it would otherwise be impossible to conduct meaningful appellate review of the motivations of prosecutors in individual cases, particularly when such review often occurs years after the trial.” Id. at 729. The PCRA court, and by extension Dennis, posits that our rejection of the Batson claim in Dennis I was premised on deficiencies in Dennis presentation of his claim that would be remedied if a court were to permit Dennis to develop a full and complete record. Thus, they rely on Basemore for the proposition that where a defendant or post-conviction petitioner fails to identify “the race of all the venirepersons removed by the prosecution, the race of the jurors who served and the race of the jurors acceptable to the Commonwealth who were stricken by the defense[,]” Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 442-443 (1999), the courts should allow discovery to create that record.
In Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 631 (1995), cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996), we set forth the method for presenting a Batson claim:
To sustain a prima facie case of improper use of peremptory challenges, a defendant must establish the following: (1) the defendant is a member of a cognizable racial group and the prosecutor exercised peremptory challenges to remove members of the defendant‘s race from the venire; (2) the defendant can then rely on the fact that the use of peremptory challenges permits those to discriminate who are a mind to discriminate; and (3) the defendant, through facts and circumstances, must raise an inference that the prosecutor excluded members of the venire on account of their
race. This third prong requires defendant to make a record specifically identifying the race of all the venirepersons removed by the prosecution, the race of the jurors who served and the race of jurors acceptable to the Commonwealth who were stricken by the defense.
(internal citations modified). Dennis contends that his claim is not previously litigated because his direct appeal counsel was ineffective for failing to indicate the race of forty-seven venire persons when he raised this claim originally. However, what Dennis fails to address adequately is the fact that this Court provided an alternative rationale for denying the Batson claim—he presented no evidence that King exhibited racial animus.14 Moreover, given that four of the jurors empaneled were African-American and given that King used seven of his peremptory challenges to eliminate non-African-American jurors, we presumed a lack of racial animus.
Dennis presents an affidavit from his direct appeal counsel, apparently in an attempt to demonstrate the second prong of the ineffective assistance of counsel standard (reasonable basis),15 which states direct appeal counsel‘s belief that he rendered ineffective assistance because he “did not present statistical evidence to support the inference of intentional discrimination and demonstrate a pattern of such discrimination by the Commonwealth.” Supplemental Reproduced Record at 17b. This does not constitute, however, failure to present evidence that King exhibited racial animus, as statistics could never demonstrate an intention to remove African-American venire members from the juror pool. Accordingly, Dennis cannot demonstrate ineffective assistance of direct appeal counsel in his presentation of the Batson claim on
CONCLUSION
For the foregoing reasons, we accept jurisdiction of this matter as a collateral appeal and reverse the Discovery Order entered by the PCRA court. We remand the matter to that tribunal to consider the remainder of Dennis’ PCRA Petition.
Chief Justice CAPPY files a dissenting opinion in which Justices NIGRO and SAYLOR join.
Chief Justice CAPPY.
I must respectfully dissent as I disagree with the majority that this court should exercise jurisdiction over this matter pursuant to the collateral order doctrine.
“The United States Supreme Court has stated that the ‘collateral order doctrine’ must be narrowly applied lest it be allowed to swallow the general rule and has characterized the requirements for an appealable collateral order as ‘stringent.‘” Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209, 1214 (1999) (citations omitted). In other words, invoking this court‘s jurisdiction for review of a collateral order is not to be undertaken lightly, and interpretation of the collateral order doctrine should be narrow in order to prevent erosion of the collateral order rule. See generally id.; see also Melvin v. Doe, 575 Pa. 264, 836 A.2d 42, 46-47 (2003).
In this case, the prong of the collateral order doctrine at issue is whether the “right involved is too important to be denied review.” Majority opinion at 107, 859 A.2d at 1278. The majority submits that the alleged “important” question presented for review is the “substance of the ‘good cause’ requirement for discovery as it relates to a claim brought pursuant to Batson and its progeny.” Id. at 108, 859 A.2d at 1278.1
[f]or purposes of defining an order as a collateral order under Rule 313 it is not sufficient that the issue be important to the particular parties. Rather it must involve rights deeply rooted in public policy going beyond the particular litigation at hand.
Id. at 552 (citations omitted); Geniviva, 725 A.2d at 1213-14; Melvin, 836 A.2d at 47. Furthermore, “the overarching principle governing ‘importance’ is that ... an issue is important if the interests that would potentially go unprotected without immediate appellate review of that issue are significant relative to the efficiency interests sought to be advanced by adherence to the final judgment rule.” Ben supra.
Based upon this understanding of the “importance” requirement, I am not persuaded that the issue in this case is sufficiently “important” to invoke our jurisdiction under the collateral order doctrine. The majority intimates that this issue is sufficiently important since it “would provide our court with an opportunity to explain the substance of the ‘good cause’ requirement for discovery....” See Majority opinion at 108, 859 A.2d at 1278. In Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1175 (1999), we examined the “good cause” requirement and indicated that a discovery request, at the collateral stage, must be supported by specific grounds and a claim of necessity in order to meet the good cause requirement. Id. Thus, there is guidance of the definition of “good cause” as set forth in
Furthermore, I find it unusual that after concluding that this issue is sufficiently “important” to invoke our jurisdiction under the collateral order doctrine, the majority then concludes that this “important” issue is previously litigated.2 Thus, the majority invokes the collateral order doctrine to speak to the substance of the good cause requirement, but never analyzes this “important” issue because it is previously litigated. Accordingly, I must respectfully dissent.
Justices NIGRO and SAYLOR join this dissenting opinion.