*1 mental infirmity because he did not cooperate the inter- Thus, process. view the parties are talking apples and or- I anges, and would not adopt party’s either analysis issue.
Rather, join I the result of the majority opinion on this issue simply because the Commonwealth laid an adequate founda- tion for Dr. Weiner’s rebuttal testimony at the penalty phase. Specifically, Dr. court, Weiner testified before the trial without jury present he had reviewed least 211” sources “[a]t of information in preparing report his for the penalty phase, N.T., 11/10/2001, 1074; these sources informa- tion included police reports, personnel, interviews with medical reports medical personnel, id. at 1084-85. Furthermore, he stated that he-could render an opinion with- out the aid of the Appellant. interviews with Id. at 1074-75. Accordingly, trial court did not abuse its discretion admitting this testimony and the weight to be accorded such testimony jury. was for the
Messrs. Justice joins NIGRO and SAYLOR this concurring opinion.
Supreme Pennsylvania. Court of
Argued March 2004. Decided June *2 Reed, Cynthia Manifesto, L. F. Esq., Esq., William Pitts- burgh, David R. Kennedy. Wayne Streily,
Michael Esq., Pittsburgh, for Common- wealth of Pennsylvania. CAPPY, C.J., CASTILLE, RALPH
BEFORE: J. *3 NIGRO, NEWMAN, SAYLOR, BAER, EAKIN and JJ.
OPINION Chief Justice CAPPY. allowance,
In this appeal by our Court is presented with two order, issues: trial court challenged whether in which court Appellant’s Quash denied Motion to Withdraw and/or order; and, Subpoena, so, is an collateral if appealable wheth- er the court in erred denying Appellant’s motion. For the below, reasons expressed hold that the trial we court’s order is an appealable collateral order and the court erred it when Appellant’s denied Motion to Quash Subpoe- Withdraw and/or Court, na. Accordingly, we vacate the order of the Superior court, reverse the order of the trial and remand the case to the trial court proceedings. for further
The facts appeal relevant are not in dispute. On 27, 1977, March body Capiola of Debbie found in the was woods Robinson Township, Allegheny close to the border of Washington and Upon discovery Counties. of the victim’s body, jeans blue wrapped were found around her neck. An autopsy revealed that the cause of strangu- victim’s death was jeans sperma- that the had lation. It was later determined them. tozoa stain on jeans and a submitted
In the Commonwealth early pursuant obtained Appellant, which was sample blood (“Cellmark”) Inc. warrant, Diagnostics, to Cellmark a search inculpated Appel- The results of test analysis. for DNA an Thereafter, Police obtained Pennsylvania State lant. him- surrendered Appellant, Appellant arrest for warrant subsequently to the Police. Commonwealth self State homicide, 18 one count of criminal charged Appellant with 2501(a). § Pa.C.S. in the of 2001 begin August trial set to
Appellant’s was County, Criminal Divi Allegheny Pleas for Court of Common informal response Appellant’s Prior to trial and sion. Appellant discovery, provided for the Commonwealth request then Appellant results from Cellmark. the DNA test included, Motion, in pertinent Pre-trial filed an Omnibus which sought he Discovery for Pre-trial which part, a Motion Technolo jeans the blue sent to The Bode to have permission (“Bode”) addition, for analysis.1 Inc. DNA gy Group, Authorizing for an Release Appellant filed a Motion Order he Independent Testing requested which Evidence jeans and to required package The trial court these testing. granted send them to Bode for blood sample to have a permitted Appellant motions result, jeans sent to Bode as As a drawn and well. its completed to Bode. Bode sample blood were delivered jeans to the Common testing and returned procedures *4 wealth. “Petition for 6, 2001, filed a the Commonwealth August
On Witness and Directing Appearance of Out-of-State Certificate (“Petition”) pur- in Thereof’ Support a Memorandum of Law Attendance of Wit- to the Act to Secure the suant Uniform Proceedings, or Criminal nesses Within Without State Petition, § et In the the Commonwealth seq. Pa.C.S. directing the court issue a Certificate Suzanna sought to have Virginia. testing facility Springfield, located in 1. Bode is a DNA Bode, Ulery, employee an of “to appear and as a testify ¶ addition, in Appellant’s witness” trial. Petition at 8. In Commonwealth asked the court to direct the following: “a data, copy any of and all test results reports compiled and/or conducting analysis when its [Bode] evidence question to be to the forwarded Petition at Commonwealth.” ¶ Petition, to the According Attorney Assistant District for Allegheny County contacted Ms. Ulery August of 2001 requested copy report of her concerning the DNA analysis of the relevant evidence. Additionally, Common- wealth asserted that Ms. Ulery informed the Assistant District Attorney that no report was ever written and that she was to provide unable the Commonwealth with the results of her analysis counsel, without the consent of Appellant’s which counsel had refused to provide.
It also appears the record that the Commonwealth (“Second Petition”), filed a second Petition simply which it entitled “Petition for Certificate Directing Appearance Out- of-State Witness.” This Second Petition contains less content first, than the and the Commonwealth not attach did a Memo- randum of Law to the Second Petition. In the Second Peti- tion, the Commonwealth averred that Ms. Ulery’s attendance or the attendance representative of a Bode required trial, that Appellant’s Ulery Ms. or a representative Bode is a case, material witness that by enacting the Uni- form Act to Secure Attendance of Witnesses Within or With- State, out a the Commonwealth of Virginia provi- “has made sion for commanding persons within its borders to attend in criminal testify prosecutions or grand jury investigations or commenced about to commence in the Commonwealth ¶¶ 2, 3, Pennsylvania.” Second Petition at and 7. The record is not clear as to when the Commonwealth filed the Second Petition. 7, 2001, August
On the trial court signed a Certificate. The Certificate Ulery indicates Ms. or a representative Bode is “a necessary and material
Pennsylvania presentation their case in chief....” *5 Certificate, ¶ the of delineating purpose In at 3. Certificate following: the court stated being of purposes for the this certificate is made
That Court, Criminal Divi- Superior Judge to a presented Fairfax, of sion, of Commonwealth County in and for the is, to proceedings Ullery R. Virginia; where Susanna in at the trial testify to attend and Ullery compel Suzanna Common- before this court the criminal prosecution 9, 2001 at 9:30 as on Pennsylvania August wealth material that trial. witness ¶ added). (emphasis
Certificate at 7 a Motion to Withdraw Quash then filed Appellant and/or Motion, (“Motion to this Quash”). According to Subpoena Appel counsel the Commonwealth Appellant’s provided Ap that lant’s list and informed witness In to at trial. any expert did not intend call pellant Appellant purpose the Motion to asserted Quash, “[t]he subpoena subpoena issue was Commonwealth’s [Bode], the results as to secure reports records and well agent as an of DNA has testing, performed which [Bode] services advice providing legal assist defense counsel for trial.” preparation and to assist [Appellant] [counsel] ¶ such, issuance of the Motion at As Appellant opposed 6. privilege, work- subpoena attorney-client based on to effec doctrine, rights constitutional Appellant’s product self-incrimina against compelled assistance of counsel and tive on Quash Motion to Appellant’s tion. The trial court denied filed a Notice of day.2 response, Appellant the same appealing the trial court that he was Appeal, informing Quash. his Motion to denying court’s order Court, Appellant argued In his to the appeal Superior as a collateral trial court order is challenged appealable Quash, the Following Appellant’s Motion to 2. the trial court's denial Directing Certificate Commonwealth filed an "Amended Petition for Memorandum of Law Appearance of Out-of-State Witness and signed pursuant Support to the Thereof." The court a Certificate August Amended Petition on pursuant Pennsylvania Appellate order Rule of Procedure *6 Orders,” 313. Rule entitled states as follows: “Collateral (a) An appeal may right General Rule. be taken as of agency a collateral order of an administrative or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where is too to be denied and the right important involved review is that if until question presented postponed such review is case, final judgment irreparably the claim will be lost. Pa.R.A.P. 313.
In an a of the unpublished opinion, majority Superior Court that the trial panel disagreed Appellant with court order meets all of the a requirements for collateral order under Rule majority 313. The assumed that the order the first meets two 313, i.e., requisites for a collateral order under Rule that the separable order is from and collateral to the main cause of action and that the is too right important involved to be denied however, majority, review. The found that the order fails to order, ie., meet the Rule’s final for a collateral requirement if question that of the is until final presented postponed review case, judgment irreparably then the claim will be lost. determination, Based on this the majority quashed Appellant’s appeal interlocutory.
The Honorable Richard B. Klein filed a Judge dissent. dissent would have found that the order collater- challenged and, thus, al appealable under Pa.R.A.P. 313. As to the legal order, issue underlying the the dissent have determined would that the trial compel Ulery testify court could not Ms. for and, therefore, would have reversed trial court’s order Motion to denying Appellant’s Quash.
Following Superior quashal Appellant’s ap Court’s Appellant for peal, petitioned appeal, this Court allowance of granted.3 which we appeal questions
3. The we issues address raise of law. There- fore, novo, necessary, our standard of review is de and to the extent Court, argues Appellant to our appeal In his requirements the three order meets court challenged trial Moreover, Appellant under Pa.R.A.P. 313. collateral order to the con- Court’s determination Superior contends Schwartz, in Ben this Court’s decision trary is at odds with (1999). the Common- Interestingly, A.2d 547 556 Pa. agrees Appellant. wealth appealability as to the agreement of the
Regardless
parties’
as a
order,
appealable
order is
whether an
challenged
this Court’s
is an issue of
order under Rule 313
collateral
an order. There-
an
of such
jurisdiction
appeal
to entertain
as to
fore,
determination
independent
make an
we must
Rule 313.
appealable pursuant
the order is
whether
right
taken as of
may
order
An
from collateral
*7
appeal
to the main
from and collateral
separable
the order is
where
to be
action,
important
too
right
is
cause of
involved
if
review,
is such that
review
question
and the
involved
denied
313.
lost. Pa.R.A.P.
irreparably
the claim will
postponed,
is
are akin to those
by
raised
this matter
The Rule 313 issues
v.
in our decisions
Commonwealth
raised and addressed
(Pa.2004),
Ben,
Dennis,
supra.
Next, we turn to the “importance” element of Rule 313. An
important
issue is
under Rule 313 if
implicates
the issue
rights
deeply
in public policy
impacts
rooted
on individuals other
Dennis,
than
litigation
those involved
of that case.
1278;
Ben,
Dennis,
A.2d at
see
In this similar to implicates, the issue inter alia, the work-product doctrine. Additionally, we find that impacts the issue on individuals other than the litigants due to the fact that the trial court ruling in case will affect the manner in which defense attorneys prepare for trial. More- over, provides this issue our Court with the opportunity speak question rights whether the privileges asserted Appellant bars from calling *8 a witness an agent by hired defense attorney. Accordingly, we find that the by claims raised Appellant impor- meet the tance element of Rule 313.
Lastly, we must examine the “irreparably lost” element of Pa.R.A.P. 313. This has Court stated that is no “[t]here effective means of reviewing!,] after a final judgment[,] an order requiring production the of putatively protected materi- Ben, 552). al.” Id. at 1279 (citing 729 A.2d at The order at issue in Dennis required production the of documents that the protected Commonwealth contended were work-prod- uct doctrine. Id. ultimately We that determined “the Com- in the case work-product privilege of monwealth’s assertion not collater- permit lost if do judice irreparably sub will be we here.” Id. al review “to matter, Ulery trial court ordered Ms. attend
In this ¶ 7; at see pg. trial. Certificate testify” Appellant’s of such, the production As the court has ordered supra. Therefore, “material,” i.e., Ulery. Ms. protected putatively Dennis, of, Appellant’s find that assertion accordance we alia, if lost work-product irreparably doctrine be inter will juncture. not collateral review at permit we do We, thus, trial court order meets relevant hold order, appellate re- requirements three for a collateral pursuant of the order is concerning appropriate the issue view Superior quash- that the Court erred to Pa.R.A.P. Due to resolution interlocutory. its ing Appellant’s appeal order, Superior of the trial court appealability of the Appellant’s parties, not reach the merits claims. did however, argu- to this respective briefed Court their have Hence, claims. for sake regard Appellant’s ments Ben, address these claims. 729 A.2d judicial economy, we will at 552-53. above, the trial court’s Appellant
As stated avers that subpoena Ulery attorney-client decision Ms. violates doctrine, and his constitutional privilege, further rights Appellant effective assistance counsel. no in the provisions Pennsylvania contends that there are Procedure that for the Com- Rules Criminal would allow or conclusions of a non- “discovery opinions monwealth’s retained the defense.” Brief at expert Appellant’s 15. asserts that no criminal defense closing, Appellant that, attorney required by exploring “should be to fear client, or she exculpation might of scientific of a he possibility coffin.” driving Appellant’s another nail into client’s such, As this Court to reverse Appellant urges Brief the trial court’s order his Motion to denying Quash. claims, against Appellant’s
In its Common- argument the trial court’s concedes that the issue of whether wealth *9 218 privileges case and asserted rights
decision
violates
a
one.”
by
certainly
“is
difficult
Commonwealth
Appellant
short,
argument
14. In
can be
Brief at
Commonwealth’s
v.
as follows: “Either
fairly
up
[Commonwealth
summed
(1990)
Porter,
162,
or it
good
Pa.
Thus,
a court can
determining
we are faced with
whether
a criminal
expert,
originally
an
who was
hired
compel
in order to
for the defendant’s
attorney
prepare
defendant’s
trial,
trial,
and
at a defendant’s
where the
testify
attend
not
on
at trial or
plan
calling
expert
using
defendant does
materials that the
as evidence at trial.
any
expert completed
Procedure,
find that this
Guided
our Rules of Criminal
we
doctrine.
work-product
issue can be resolved under
States first set out the
Supreme Court
United
495,
329
Taylor,
doctrine Hickman
U.S.
67
(1947).
Hickman,
385,
S.Ct.
In United States to work-product protect doctrine expanded Court preme contemplation of agents attorneys of in materials prepared the signifi- Additionally, recognized the Court clients’ trials. setting. of in the criminal of the the doctrine protections cance Nobles, 2160. The Nobles Court at 95 S.Ct. U.S. doctrine as follows: work-product summarized the the mental core, work-product doctrine shelters At its area privileged within attorney, providing of the processes his case. But the he client’s analyze prepare can which one, in the grounded intensely practical doctrine is an adversary in litigation system. realities of our of those explain The went on to that “[o]ne Id. Court in Nobles of rely must the assistance attorneys realities is that often on of agents other in the materials investigators compilation The trial.” 2160. preparation in for Id. 95 S.Ct. Court, therefore, it that doctrine necessary protect found “the as those by agents attorney material for the well as prepared attorney empha himself.” Id. Court prepared sized, however, is not that the doctrine absolute work-product but, rather, that be waived.4 Id. qualified privilege may is a matters, this pre-trial discovery the context of criminal work-product of the adopted general Court the substance as Rule of Pennsylvania doctrine announced Hickman. Product,” 573(G), Criminal entitled “Work shields Procedure full, attorneys’ discovery work-product provides, that of shall not of research or required legal
[disclosure
records,
to
or memoranda
the ex-
correspondence, reports,
theories,
or conclusions
they
opinions,
tent
contain the
attorney
of the
for the
or the
attorney
defense,
legal
or members of their
staffs.
that,
trial,
instance, Nobles, the
when the
4. For
Court determined
report
prepared
to call a
who had
for the
defendant elected
trial,
prior
[protections
defendant
defendant “waived the
work-product
respect
[the witness’]
doctrine]
matters covered
Nobles,
testimony.”
S.Ct.
In order to determine in the context of protections discovery, work-product doctrine extend to the agents criminal defense attorneys, 573(C), turn to we Pa.R.Crim.P. which delineates what the must defense disclose to the Commonwealth and what a trial court require has discretion to defense disclose to 573(C), the Commonwealth. When we read Rule find that we the Rule allows the Commonwealth to discover the work- *11 product agents of of attorneys, only defense but in very limited circumstances. 573(C)(2)(a)5
Under Pa.R.Crim.P. a trial court has the to require discretion a criminal defendant to turn over results of reports testing, and scientific such testing, as DNA com alia, piled by third-party when, a for the defendant inter defendant intends on these using materials as evidence in chief or the defendant on plans calling the third-party who a prepared materials witness at trial. Pa.R.Crim.P. 573(C)(2)(a)®; Breakiron, see 524 Pa. 571 A.2d 1040 (1990)(discussing former Pa.R.Crim.P. 302(C)(2)(a), which current 573(C)(2)(a), became Pa.R.Crim.P. stating Commonwealth, and that subject “the to the court’s 573(C)(2)(a)(i) 5. Rule states as follows: (2) Discretionary with the court: (a) cases, In all court pretrial if the Commonwealth files a motion for discovery, upon showing materiality preparation a to the of the reasonable, request Commonwealth’s case and is the court defendant, may subject rights against order the to the defendant’s self-incrimination, compulsory attorney to allow the for the Common- inspect copy photograph wealth to or any following of the requested items: (i) examinations, reports or physical results or mental and of experiments particular scientific tests or made in connection with the case, thereof, copies possession or within the or control of the defendant, the defendant intends to introduce as evidence in chief, prepared by or were witness whom the defendant intends to trial, reports testimony call at the when or results relate to the of that witness, provided requested discoveiy defendant has received (B)(1)(e); paragraph under discretion, may exercise of its sound discover the results of examinations, these reports only examinations or of such but when the intends to use these materials in his ease defendant added). in cMe/”)(emphasis Additionally, a court has the discretion to require expert, an who has conducted an exami nation or test for a defendant not completed but who has (and defendant, report for the prepare defendant to disclose) a must other report, provide, among things, which the subject matter on expert expected testify which a summary expert’s opinion. Pa.R.Crim.P. 573(C)(2)(b).6 A court’s discretion to order the production is, report again, such a dependent upon whether the defendant calling intends on as a expert the criminal Thus, proceedings. generally Id. our Rules of speaking, Crim inal protect work-product Procedure of agents hired 573(C) defense attorneys from discovery, qualifies and Rule this protection.
While our Rules of Criminal Procedure generally protect agents hired by attorneys, defense these only Rules apply pre-trial do not discovery. They address whether the work-product doctrine bars the Commonwealth from calling such an agent testify at trial. The Common Porter, wealth contends that our decision in supra, allows the Commonwealth to Ulery We, call Ms. as a rebuttal witness. therefore, will consider the applicability of Porter to the issue *12 raised by Appellant. of, alia,
Porter murder, was convicted inter first-degree conviction, for this Porter, he was to sentenced death. trial, A.2d at 943. Prior to Porter’s investigators discovered a latent fingerprint scene, trial, at the murder and at the Commonwealth as called witnesses a police fingerprint expert 573(C)(2)(b)
6. Rule states as follows: (2) Discretionary with the court: (b) expert If an whom any proceeding the defendant intends to call in tests, court, prepared report has not upon a of examination or the motion, may expert prepare order that the and the defendant disclose report stating subject a expert expected the matter on which the is to testify; expert expected the substance of the facts to which the to testify; summary expert’s opinions grounds and a and the for opinion. each rfebuttal,
and, who the fingerprint expert an independent Id. Both originally defense had retained. at 944-45. wit- Id. at identified as to Porter. 945. print belonging nesses the Court, allowing to Porter that the appeal argued In his independent to call the as rebuttal expert Commonwealth to him because he did not contradict prejudicial witness was he fingerprint the evidence and because had Commonwealth’s not call him as a witness trial. expert retained but did claims, merely Id. In these our stated the response to following: entitled support
The Commonwealth was [a witness’] appellant] appel- [of [the identification evidence expert’s and indeed own fingerprint appellant’s lant’s] inquiry It was not the court to allow opinion. improper he expert’s] appellant, into retention who prior [the case[,] any serve his findings. could not consistent with it was cumulative. in the trial Although
Id. we found no reversible error court’s expert to allow to call the decision the Commonwealth trial, a finding did not discuss such we whether claims scrutiny presently would survive under various Therefore, our decision in Porter offers by Appellant. raised us insight questions us little into the answers before today.7 that acknowledge protections
While we traditionally attached to the work-product doctrine have dis trial, covery tangible prepared anticipation materials an agent criminal defense counsel hires we find when a law, questioning good 7. In addition to whether Porter is Common- Court, reviewing the wealth also asserts issue before our we Jones, our 546 Pa. must consider decision Commonwealth trial, (1996). psychiatrist A.2d 1181 Prior to Jones hired a evaluate him, ultimately psychiatrist not to call the at trial. Id. at but decided Instead, testimony psychiatrist's offered Court, relevancy appeal challenged the in rebuttal. Id. On to our Jones testimony psychiatrist’s qualifications to offer this of this and the Jones, however, testimony. even Id. did not raise an issue that remote- appeal, ly by Appellant in the current nor resembles the claims raised Therefore, we discuss in Jones. Jones is irrelevant did such an issue *13 analysis appeal. in this our
223
the
calling
not
on
plan
for trial and does
prepare
order to
prepared
trial or to utilize materials
as a
agent
witness
trial,
of the
application
a practical
as evidence at
agent
the
the
in criminal matters bars
Commonwealth
to trial
doctrine
behalf, unless
as a
on its
agent
such an
witness
calling
need
showing
of substantial
the
“first makes
Commonwealth
to
the substantial
testimony
inability
that
obtain
[an]
of
United
testimony
hardship.”
of that
without undue
equivalent
(N.D.N.Y.1995).
Walker,
861,
There
864
F.Supp.
v.
910
States
573,
in Rule
why
adopted,
this Court
multiple
are
reasons
in the context
work-product
of the
doctrine
protections
case,
agree
to this
we
pertinent
Most
discovery.
criminal
adversary
“promotes
the doctrine
proposition
fear
cases without
by enabling attorneys
prepare
system
their clients.”
against
be used
their work
will
product
Republic
Philip
Westinghouse
Corporation
Electric
(3rd
Hickman,
1414,
329
Cir.1991)(citing
951 F.2d
pines,
T,
510-11,
v. AT & 642
In our
the same holds true at
a criminal
agent
of the efforts of an
retained
disclosure
simply
If
could
call an
attorney.
defense
the Commonwealth
trial,
preparation
the defense had hired
agent, who
agent provided
as to the efforts that
testify
defense,
could circumvent
then the Commonwealth
above,
doctrine, as stated
work-product
purpose
In other
for criminal cases.
discovery
that of our rules
words,
call such an
if we were to allow
witness,
of a criminal defense
as a
then the mission
agent
protections
waived the
Due to the fact that the defendant in Nobles
doctrine,
scope of the
the Court did not "delineate the
Nobles,
attorney investigate to thoroughly the evidence or against his her client be unjustifiably would hampered. Criminal defense attorneys would find themselves position unenviable independently investigating evidence that may exonerate their clients, while, time, at the same risking the creation of evi- Walker, against dence their clients. See at 866 F.Supp. (agreeing Jersey New Supreme Court that “[a] defense attorney completely should be free and unfettered in making a decision as fundamental as that concerning retention of an to assist expert him----If the confidentiality of that cannot be anticipated, advice the attorney might well forego seeking such assistance to the consequent detriment of his cause”) (citation omitted). Ghent’s In order to avert the circumvention of the purpose of the doctrine and of our rules governing discovery in matters, criminal practical we hold that a application of the work-product doctrine to trial in criminal proceedings pre vents Commonwealth from calling as a witness an agent the defense in preparation who hired for trial but decided not call as a trial or to witness at use the materials prepared by trial, the agent as evidence at unless the can show substantial need for such testimony inability and an obtain the substantial equivalent of such testimony without hardship.9 undue Consequently, absent these showings, a may trial court not compel such testimony. See id. 864- 67(holding that a practical application of the work-product supported doctrine the court’s conclusion that “the govern ment precluded should be from eliciting testimony from the experts defenses’ concerning efforts undertook at they request defendants’ attorneys, opinions or the and conclu- Porter, testimony by we found that the expert offered Commonwealth, by defendant, originally called but retained Therefore, was cumulative. expert's our determination that the testi- mony premised finding did not constitute reversible error can on a did, however, of harmless error. We state that the Commonwealth was expert entitled to call support the defendant’s the Commonwealth's witness, despite identification the fact that the defendant decided not to call Consequently, holding today, the witness on his behalf. under our Porter is overruled to the extent that we held that the Commonwealth permitted expert, was call a defendant’s who the defendant did not behalf, call on his or her as a witness at trial. they developed attorneys, sions at the behest of defendants’ government showing unless the first makes a of substantial need of that to obtain the testimony inability substantial equivalent of that testimony hardship”); without undue State Dunn, 1, 650, v. 154 N.C.App. 571 S.E.2d (N.C.Ct.App.2002)(concluding by, the trial court erred among things, unnecessarily breaching other the work-product doctrine compel testimony when court allowed State to defense, not experts hired where the defense did trial); plan to call the experts People witnesses *15 316 Spiezer, Ill.App.3d 249 Ill.Dec. 735 N.E.2d 1025 (2000)(finding prohibited that the work-product doctrine the prosecution from the of “discovering identity reports and non[-]testifying experts the from by retained defense and [ ] calling trial”); such experts testify at Commonwealth v. Noll, 602, 443 Pa.Super. 662 A.2d (1995)(holding 1127 doctrine, alia, that the work-product inter barred the Com from calling reconstructionist, monwealth an expert accident defense, trial).10 originally hired a at matter, In this the Commonwealth concedes that it “has the jeans, tested, blue has had them is prepared present and its own expert testimony.” Commonwealth Brief at 14. There- fore, the Commonwealth cannot make showing of substantial need and undue as to hardship testimony Ulery of Ms. or any other representative from Accordingly, Bode. we find that the trial court abused its discretion by issuing subpoena compelling Ms. Ulery attend and testify Appellant’s trial. Thus, the court erred in denying Appellant’s Quash. Motion to reasons,
For these we vacate the order of the Superior Court, court, reverse the of the trial order remand the and case to the trial court for further proceedings consistent with this opinion.
10. Because we disposes find that the doctrine of the issue case, in this Appellant's attorney-client privilege we decline to address argument. For this reason and because "a court should not reach [a] if properly constitutional issue the case can be decided on non-constitu- Commission, grounds,” Pennsylvania tional P.J.S. v. State Ethics (1999), Pa. 723 A.2d we will also not reach the merits of Appellant’s Sixth Amendment constitutional claim. a concurring opinion. CASTILLE files
Justice concurring files a opinion. Justice SAYLOR CASTILLE, concurring. Justice acceptance jurisdiction of over Majority’s I concur mandate, of vacates the order this matter its which the trial court for remands case to Superior however, because separately, my further I write proceedings. differs question appealability significantly of of view expressed by Majority. petition is the appeal At the root of this Commonwealth’s 6, 2001, directing a certificate de sought August which “appear expert, Ullery, fense’s out-of-state Suzanna expert’s employer, Technology at trial and the Bode testify” any “a and all copy to forward to the Commonwealth Group, results, data, compiled the Bode Tech reports test and/or conducting analysis its evidence nology Group when ¶ however, the Notably, proposed question.”1 Petition certificate, not attached to did direct petition, which was event, any reports. any documents or production certificate, did nor adopt proposed trial court not or sign requests. it otherwise the Commonwealth’s upon did rule petition substantially second was scaled- Commonwealth’s *16 data, production any reports, and did not or down seek only The certificate directed the proposed results. second 7, Ullery August at trial. testimony attendance and of Ms. On certificate, the signed proposed the trial court second to the Act to Secure the Attendance of pursuant Uniform or Without State Criminal Pro Witnesses Within seq. et However, the Majority § as ceedings, Pa.C.S. notes, the trial not direct counsel to disclose court did defense Ullery the information or any respecting to Commonwealth The trial testing the DNA that Bode had conducted. court certificate, quash denied motion to the and appellant’s then appeal. subject that denial is the order which is “Ullery'' "Ulery.” variously spelled 1. The witness's name is August employed in spelling in text the court's follows order. trial court’s of the scope the true nature Unfortunately, parties upon here has been lost apparently certificate from the outset have Appellant appears the lower courts. certificate, motion to he in his argued misapprehended subpoena of the certificate “was to purpose that the quash Group, as well as Technology of the Bode reports records and ¶at 6. On DNA Motion any testing.” the results of to secure the mark Court, continues to miss appellant to this appeal brief, in his points argument, urging, his various with testing, DNA see the results of Bode’s nature of: privileged 9, 15, 22; reports “the records [and] Brief Appellant’s Bode,” 14; opin Ullery’s expert id at and Ms. by prepared ions, misper seems to 14-15. The Commonwealth also id at certif witness-appearance actual content of the mere ceive the by drafted notably in its favor—which was granted icate non-privileged insisting upon Commonwealth—repeatedly Brief at “DNA test results.” Commonwealth nature of Bode’s 15, 20, 29.2 off-point parties’ to the confusion created
Adding Although courts. are the lower arguments opinions that “the Certificate court Commonwealth’s recognized trial Bode, rather the materials from but any not seek written does opinion, it further its testimony Ul[l]ery,” of Ms. went any at trial Ul[l]ery appears that: if offering “[E]ven jeans, testing to the DNA produced incidental writings e., thereof relative support ‘test results and materials 1. Bode,’ presently ... there is analysis conducted [the] protected.” ... suggest writings such would nothing Petition). Moreover, the Trial at 6 Amended Op. (quoting Ct. in the for the defense Ullery’s trial court found that Ms. work case, testing, the DNA was “without conducting instant re- meaning,” strongly implying whatever legal inherent otherwise, or or she memorialized opinions possessed, sults if the doctrine protected not be under would her on her defense work. question sought seeking point, expressly that it is At one the Commonwealth submits *17 may at 20. That results.” Commonwealth Brief “facts—DNA test seeks, the heart of this but the order at what the Commonwealth grant dispute did not it. appeal, Superior Id. On in panel majority, affirming the trial reasoning, court’s the scope overstated of the certifi- cate, finding that the trial court required had Ms. Ullery “testify attend and as to the results of testing DNA ... on a pair jeans.” sum, conducted blue at 1. In Slip Op. both parties regrettably have approached issue as if it involved an compelling order disclosure of the expert’s findings or opinions, and the opinions lower courts’ were not exactly models of clarity appreciating the governing record.
Contrary assumptions implications attending the arguments of both parties, and notwithstanding misplaced courts, commentary by both signed lower certificate at issue this case was not a subpoena duces tecum.3 It did not the production any tangible order relating evidence to Ms. Ullery’s expert research or opinions. Nor did it purport compel Ullery’s Ms. testimony regarding that research or short, those In opinions. it was not a discovery order. It simply was a certificate to be presented to a judge Commonwealth of for Virginia proceedings to procure a sub poena Ullery’s Ms. attendance at appellant’s trial. Accord ingly, the sole and exceedingly narrow issue of appealability here is whether the in a may defendant criminal case appeal, of right, pre-trial from a refusing order a certifi quash cate which directs an out-of-state expert defense to “appear testify,” where the defense has assured the that it court does not intend to call that expert at trial. affirmative, answering question the Majority body person—where
assumes that the of a that person is a defense in a expert criminal protected case—is “attorney no work-product,” different from or reports documents. The Majority this fiction indulges so that it can fit the square peg case—i.e., presented by this a mere order directing an out-of- state defense witness to appear trial—into the round hole that is this attorney work-product Court’s jurisprudence context of the this, collateral order doctrine. By doing subpoena ordering "A appear bring specified witness to and to documents, records, things.” or Dictionary, Black's Law 8th Ed. (2004).
229
case,
discovery
the matter into a
which
Majority converts
appealability.
the
of collateral order
question
turn resolves
collateral
the
agree
Majority’s
I
with
articulation
While
the
its ultimate conclusion that
denial
order rule and with
motion to
the certificate is
under
quash
appealable
the
rule,
the actual nature of the
closely upon
I
focus more
would
order,
thus,
jurisdiction under the collater-
accept
I would
different reasons.
very
al order doctrine
reasoning concerning
I
the
agree fully
Majority’s
with
from the
question
separable
the certificate
whether
was
944,
below,
but take
Majority op.
of action
see
at
main cause
the second and third
Majority’s analysis
the
issue with
relying
on
Majority,
of the collateral order test.
prongs
Dennis,
(Pa.2004), and Ben v.
v.
However, are that it is the circumstances of case such I appel- not a mere case. would hold that order-to-appear “importance” by indulging lant’s claim attains here not fiction that the order but because discovery-based, solely was outset, unique circumstances From the presented. Ullery of its desire to Ms. intertwining Commonwealth’s have actually at trial its desire to obtain Bode’s DNA present confusion, caused disparity test results as evidenced initial and its petition proposed between Commonwealth’s ¶ ¶ at Compare certificate. Petition 8 with Certificate conflated position apparently per- Commonwealth’s has that the or- throughout litigation, notwithstanding sisted orders, theories, appellate der issue—and courts review not any requests—did appellant produce or failed not direct documents, results, expert opinions. Appellant’s overly test or conflation, it contributed to quash motion to broad order, misperceive either parties that both appears now contours, nearly consider it inevitable its or ignore choose to as a “produced” be ultimately DNA results will that Bode’s discovery fear of a Mere Ullery’s appearance. of Ms. result pre- attenuated to warrant be too ordinarily would violation calculus, in review, my alters the decisively but what trial announced view, essentially trial court has is that despite appellant’s permit inquiry that it intends to advance only affirmance Superior claim. The Court’s lax universally ap- inevitably added to the created Hence, I find that to this would proach litigation. taken circumstance, if not his “right” implicated appellant’s claim, under these sufficiently important articulated poorly juris- accepting this Court’s unique circumstances warrant diction, justice. so as to ensure the administration claim” element “irreparably I that the lost
Similarly, believe satisfied, not because the of the collateral order test has been the trial implicated by attorney work-product doctrine was certificate, certainly but because it almost will court’s indeed, violated, opinion of the trial court’s implicated, light *20 I the case. would litigants’ assumptions attending and the disclosure, inevitability compelled hold that notwith- order, of the trial court’s standing actually benign nature challenge nearly enough being irreparably to puts appellant’s unjust it to deny lost that would be review. I to appeal, willing accept the merits of the because am
On affected, I that concur inevitability work-product will the Majority’s analysis disposition. SAYLOR, concurring.
Justice I join I comment is that held majority opinion. My only doctrine, of the collateral still fol- the narrower view order reme- jurisdictions, in most deem generally lowed which would on after the of a final appellate entry dies available review order of all and claims redress disposing parties adequate party litigant. errant intrusions on to a privileges belonging Attorney-Client Privilege Rice, 2 See in the Paul R. United 232 (2d 2004) (“Courts § 11.34 ed. have held consistently
States important disclosure orders are neither too nor too of the independent cause action itself to immediate justify consideration.”); Dennis, accord appellate Commonwealth v. 95, 112, (2004) 1270, C.J., 580 Pa. 859 A.2d 1281 (Cappy, J.).1 dissenting, joined by Nigro, Saylor, J. and rationale My was that the dilution of the previously existing limiting princi ples appellate would as of open right fairly review to a broad orders, class of or discovery production and the resultant piecemeal increase in and fragmentary impose review would too substantial a on the orderly burden administration of Accord, justice. e.g., Boughton, F.3d at 748-49. I also believed that Pennsylvania’s procedure seeking established review, permissive interlocutory 1311-1323, see Pa.R.A.P. an adequate safeguard against served as possibility substantial harm resulting from interim decisions out falling side narrow class of collateral orders.
Nevertheless, I
regard
majority’s present opinion as a
Dennis,
faithful application
prevailing opinion
580 Pa.
95,
Moreover,
For I these the instant appeal believe properly before the pursuant to the collateral order doctrine. I am also fully majority’s line with the merits analysis privilege concerns the issue.