J-S58037-17
2017 PA Super 338
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CARL H. PARKER :
:
Appellant : No. 421 MDA 2017
Appeal from the Order Entered February 9, 2017
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001476-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
OPINION BY GANTMAN, P.J.: FILED OCTOBER 24, 2017
Appellant, Carl H. Parker, purports to appeal from the order entered in
the Lycoming County Court of Common Pleas, which denied his pretrial
motion in limine for the production of the complainant’s medical,
psychological, psychiatric, and therapy records. For the following reasons,
we quash the appeal.
The relevant facts and procedural history of this case are as follows.
The Commonwealth arrested and charged Appellant with numerous sex
offenses as a result of allegations that he committed these various offenses
against C.P., a minor, between January 1, 2013 and December 31, 2013. At
the time of the offenses, C.P. was fifteen and sixteen years old; and
Appellant was married to C.P.’s mother. Around the same time, C.P. was
also receiving psychological support therapy. C.P. reported the alleged
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sexual abuse on January 15, 2015.
On November 10, 2016, Appellant filed a motion in limine, including a
motion for production of C.P.’s medical, psychological, psychiatric and
therapy records. The trial court held a hearing on November 18, 2016, on
Appellant’s various motions in limine, including the motion for production.
The trial court denied Appellant’s motions on February 8, 2017. Appellant
filed a notice of appeal on March 8, 2017. No concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) was ordered or filed.
Appellant raises two issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING THE
DEFENSE REQUEST FOR PRODUCTION OF MEDICAL,
PSYCHOLOGICAL, PSYCHIATRIC, AND THERAPY RECORDS
OF [VICTIM][?]
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
DETERMINING THAT THE MEDICAL, PSYCHOLOGICAL,
PSYCHIATRIC, AND THERAPY RECORDS SOUGHT BY
[APPELLANT] WERE NOT RELEVANT TO ANY OF THE
ELEMENTS OF THE CRIMES CHARGED[?]
(Appellant’s Brief at 4).
As a prefatory matter, we must determine whether this appeal is
properly before us. In Appellant’s response to this Court’s rule to show
cause why the appeal should not be quashed, Appellant argues his defense
motion in limine for the production of C.P.’s medical, psychological,
psychiatric, and therapy records qualifies as a collateral matter; and the
order denying that request is immediately reviewable as a collateral order.
Specifically, Appellant argues the denial of his motion for production is
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separate from and collateral to the issue of whether Appellant is guilty of the
charged sex offenses. Appellant claims he has a right to favorable evidence
and to confront his accuser, which outweighs C.P.’s interest in the non-
disclosure of her confidential records. Appellant asserts that without access
to the potentially exculpatory evidence contained in C.P.’s records, his
defense will be irreparably lost because it rests on C.P.’s credibility, her
delay in reporting, and her reason for the delay. Appellant submits an in
camera review of C.P.’s records would remove concerns for C.P.’s privilege
and privacy, and allow Appellant to prepare a proper defense. Appellant
concludes the court’s order denying Appellant’s access to this confidential
information is immediately appealable under the collateral order doctrine.
We disagree.
Appellate review of any “court order is a jurisdictional question defined
by rule or statute.” Commonwealth v. Rosario, 615 A.2d 740, 742
(Pa.Super. 1992), affirmed, 538 Pa. 400, 648 A.2d 1172 (1994). This
principle applies to appellate review of a pretrial order. Commonwealth v.
Jones, 826 A.2d 900, 903 (Pa.Super. 2003) (en banc). A court may
consider the issue of jurisdiction sua sponte. Commonwealth v. Grove,
___ A.3d ___, 2017 PA Super 286 (2017) (citing Commonwealth v. Ivy,
146 A.3d 241, 255 (Pa.Super. 2016)). In evaluating our jurisdiction to allow
Appellant’s appeal, we look to other criminal cases involving appeals of
pretrial orders. Id.
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The general rule in criminal cases is that a defendant may
appeal only from a final judgment of sentence, and an
appeal from any prior order or judgment will be quashed.
In this Commonwealth, an appeal may only be taken from:
1) a final order or one certified by the trial court as final;
2) an interlocutory order as of right; 3) an interlocutory
order by permission; or 4) a collateral order.
* * *
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.
* * *
In light of the long-standing rule of American
jurisprudence that, except in extraordinary
circumstances, an appeal may be taken only from a
final order of the court, and in recognition of our
responsibility to preserve the sanctity of the
appellate process, …a criminal defendant may not
appeal from an order of a suppression court even in
the posture of a cross-appeal.
Id. at 255-56 (internal citations omitted).
Rule 313 of the appellate rules defines a collateral order as:
Rule 313. Collateral Orders
(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.
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Pa.R.A.P. 313. Rule 313 is jurisdictional in nature. Commonwealth v.
Blystone, 632 Pa. 260 269, 119 A.3d 306, 312 (2015). “Thus, if a non-final
order satisfies each of the requirements articulated in Pa.R.A.P. 313(b), it is
immediately appealable. However, we ‘construe the collateral order doctrine
narrowly’ so as to ‘avoid piecemeal determinations’ and protracted
litigation.” Id. at 270, 119 A.3d at 312. “[T]he requirements for an
appealable collateral order remain stringent in order to prevent undue
corrosion of the final order rule.” Melvin v. Doe, 575 Pa. 264, 272, 836
A.2d 42, 47 (2003). “To that end, each prong of the collateral order
doctrine must be clearly present before an order may be considered
collateral.” Id. Concerning whether the issue on appeal directly affects a
right that is too important to be denied review, the question “must involve
rights deeply rooted in public policy going beyond the particular litigation at
hand.’” Id.
In the instant case, Appellant fails to satisfy the first and second
categories of appeals where the order on appeal is not a final order under
Rule 341 or an interlocutory appeal as of right under Rule 311. See Ivy,
supra. Regarding the category of interlocutory appeals by permission under
Rule 312, the trial court did not certify the order for immediate appeal and
Appellant did not file a petition for permission to appeal under Rule 1311.
Finally, the order fails to meet the requirements of a collateral order under
Rule 313. In this regard, the trial court reasoned:
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A ruling on a motion in limine is not a final order for
purposes of appeal. The [c]ourt believes that the general
rule in criminal cases: that a defendant may appeal only
from a final judgment of sentence, and an appeal from any
prior order or judgment will be quashed is applicable to the
case at bar, and as such this issue is not reviewable by the
Superior Court.
The Superior Court is considering the appeal under
Pa.R.A.P. 313 (collateral orders): however, the [c]ourt
believes that the three prongs of Pa.R.A.P. 313 that render
an interlocutory order…appealable have not been met.
* * *
An interlocutory order is [immediately] appealable if (1) it
is separable from and collateral to the main cause of
action: (2) the right involved is too important to be denied
review: and (3) the question presented is such that if
review is postponed until final judgment in the case, the
claimed right will be irreparably lost. Appellant’s claim
fails the third prong. The claim, i.e., that he should be
able to submit evidence that the [c]ourt is not admitting,
does not evade review after final judgment. Appellant can
appeal the denial after trial and will be granted a new trial
if appropriate.
If Appellant is ultimately convicted, the [c]ourt’s decision
to preclude [d]efense evidence can be reviewed through
Appellant’s right to direct appeal, thus, the claim will not
[be] lost. [Ivy, supra]. An order is not immediately
appealable if it cannot be said “that ‘denial of immediate
review would render impossible any review whatsoever of
[the] individual’s claim.’” Commonwealth v. Reading
Grp. Two Props., Inc. 922 A.2d 1029, 1032 (Pa.Cmwlth.
2007) (citing Commonwealth v. Wells, 719 A.2d 729
(Pa. 1998)). [Compare] Commonwealth v. Minich[, 4
A.3d 1063, 1068 (Pa.Super. 2010)] (review of [trial]
court’s order denying the Commonwealth’s
Pa.R.E.404(b) motion to preclude introduction of
defense evidence would be irreparably lost in the event
of an acquittal because “constitutional prohibition against
double jeopardy protects against second prosecution for
the same offense after an acquittal”). Ivy[, supra] at
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256. In Minich, the trial court[′s order denied the
Commonwealth’s motion to preclude and allowed the
proposed] defense evidence. Here, the [c]ourt has denied
a [d]efense motion to introduce evidence, rather than
allow [it]. Should Appellant be found guilty at trial, and it
is determined that the [c]ourt abused its discretion in
disallowing the admission of evidence Defense seeks to
admit, he will have another trial and can introduce that
evidence. Thus, [Appellant’s] claim is reviewable after a
final judgment of sentence, if it should ever occur. …
(Trial Court Opinion, dated May 4, 2017, at 1-3) (emphasis in original). We
agree with the trial court. Additionally, we note Appellant’s claim does not
involve defense rights deeply rooted in public policy and going beyond the
particular litigation at hand. See Ivy, supra. Therefore, Appellant’s claim
fails the second and third prongs of the collateral order test. See id.
Further, we observe Appellant’s claim is not separable and collateral to
the main cause of action, under the first prong of the collateral order test,
because Appellant admittedly wants the confidential documents to use as
exculpatory evidence, to prepare his defense and to impeach C.P. at trial.
Appellant alternatively refers to the confidential information as Brady1
material and as a potential ground to impeach C.P. for her delay or failure to
report the alleged abuse. Thus, Appellant’s claim goes directly to the merits
of his defense in this case.
Finally, we note independently that the principles enunciated in Ben v.
Schwartz, 556 Pa. 475, 729 A.2d 547 (1999), allowing interlocutory
____________________________________________
1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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appeals as collateral orders in special circumstances, do not apply here. The
Ben Court held that an order compelling the production of arguably
privileged information could be deemed immediately appealable under the
collateral order exception to the final order rule. Ben, supra applies in both
criminal and civil cases. See, e.g., Commonwealth v. Kennedy, 583 Pa.
208, 876 A.3d 939 (2005) (applying Ben in criminal context on appeal from
order granting disclosure of arguably privileged materials). Furthermore,
most cases relying on Ben for an immediate appeal involve trial court orders
permitting disclosure of confidential or privileged materials. See, e.g.,
Commonwealth v. Williams 624 Pa. 405, 86 A.3d 771 (2014) (holding
discovery order overruling claims of privilege and requiring disclosure of
Commonwealth’s notes concerning trial prosecutor’s interviews, witness
preparation sessions, and witness examination outlines was immediately
appealable under Ben); Commonwealth v. Harris, 612 Pa. 576, 32 A.3d
243 (2011) (concluding court’s order granting Commonwealth’s motion to
declare waived defendant’s privilege concerning confidential communications
with psychologist and permitting Commonwealth to hire defendant’s
psychologist as expert witness was immediately appealable under Ben).
Compare Commonwealth v. Sabula, 46 A.3d 1287 (2012) (concluding
order denying defendant’s motion to compel enforcement of pre-arrest
agreement between Commonwealth and defendant was not appealable as
collateral order under Ben).
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Here, the requested documents are indisputably privileged under 42
Pa.C.S.A. § 5944 (declaring as privileged confidential communications to
psychiatrists or licensed psychologists) and this appeal relates to the denial
of a request for disclosure of privileged information. Yet, Ben, supra has
historically been restricted to review of discovery orders granting disclosure
of arguably privileged information, and not to orders denying disclosure of
arguably privileged information. See Williams, supra; Harris, supra;
Sebula, supra. The order at issue in the present appeal denied Appellant’s
request for disclosure of incontestably privileged material. Lastly, Appellant
had the responsibility to justify the application of Ben, supra to his case;
but he failed to do so.
Based upon the foregoing, we hold the order presently before us is not
immediately appealable. Accordingly, we quash the appeal.
Appeal quashed; case remanded for further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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