Commonwealth v. Shearer

Justice SAYLOR

concurring.

While I join the majority’s holding and reasoning that the order under review directing a defense psychological examination of the child-witness can be reasonably couched as a collateral order and is therefore appealable pursuant to Rule of Appellate Procedure 313, I respectfully differ with' the majority’s analysis under Rule 311(d).

In particular, the majority indicates that Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 (2003), is directly applicable to the present circumstances. See Majority Opinion at 141 n. 6, 882 A.2d at 466-67 n. 6. The issue framed by the Court in Cosnek, however, did not involve the appealability of an order directing a defense examination of a key Commonwealth witness, but rather, concerned whether Rule 311(d) should be read to capture the denial of a Commonwealth motion to exclude defense evidence which it had certified substantially handicapped its case. See Cosnek, 575 Pa. at 413, 836 A.2d at 872 (indicating that the Court granted allocatur “to decide whether the Commonwealth may certify an interlocutory appeal from a pretrial ruling that denied its motion in limine to exclude certain defense evidence”). Cosnek’s express holding, which I joined, is also couched in similarly directed terms: “[W]e hold that the Commonwealth’s right to interlocutory appeals does not extend to appealing the admission of defense evidence.” Id. at 419, 836 A.2d at 876.

In extending Cosnek to the present circumstances, the majority relies on a passage from the decision in which the Court indicated that “we limit the application of Rule 311(d) to those ‘circumstances provided by law’ in which a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence,” Cosnek, 575 Pa. at 421, 836 A.2d at 877. See Majority Opinion at 141-42, 882 A.2d at 467. When *151read in isolation, this statement does appear to transcend the issue presented in the case. Considered in its full context, however, it seems reasonably clear to me that the language is directed to resolving the question actually under review in the appeal, rather than the articulation of some broader rule curtailing other potential applications of Rule 311(d).1 Candidly, in supporting the majority decision in Cosnek, I was not focused on other applications such as those referenced by the majority, see Majority Opinion at 141 n. 6, 882 A.2d at 466-67 n. 6, or the circumstances presented here, and I had no intention of issuing a holding that was dispositive in such distinct settings.

Since this case does not involve the denial of a Commonwealth motion to exclude defense evidence, I view the matter as one of first impression. Furthermore, conceptually, I am of the view that Rule 311(d) should be read as affording a degree of deference to the Commonwealth’s good-faith certification that a trial court’s ruling has the effect of substantially handicapping its case. The Commonwealth, on the other hand, should also appreciate this Court’s guiding concern that Rule 311(d)’s exception (to the general rule that an interlocutory order is not subject to an appeal as of right) should not wholly overcome the general rule.2

Here, the Commonwealth has certified that the psychological evaluation has the practical effect of substantially handicapping its case because, given the nature of a defense psychological examination, it will inevitably impact adversely upon the child’s testimony and impede the prosecution. In the *152circumstances, I believe that the Commonwealth’s certification is justified, particularly given the tender age of the child involved, the allegation that he has been the victim of multiple sexual offenses, and the belabored and taunting commitment by the criminal defense attorney orchestrating the examination to destroy the Commonwealth’s case by traumatizing the child.3

For these reasons, I conclude that the Commonwealth is entitled to an appeal as of right in this case under Rule 311(d), and I join the majority in reversing the Superior Court’s order and remanding the matter for the essential appellate review.

. The passage proceeds as follows:

The Commonwealth’s ability to take an interlocutory appeal as of right from the suppression or exclusion of its own evidence is rooted in the particular burden which it bears to prove its case. The defense, in contrast, carries a particular privilege to retain control over its own evidence. Both interests are protected when we limit the application of Rule 311(d) to those "circumstances provided by law” in which a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence.

Cosnek, 575 Pa. at 421, 836 A.2d at 877.

. To the degree that Cosnek touches on this case, I believe that the relationship lies in Cosnek’s reflection of this underlying concern.

. See, e.g., Brief for Appellee at 17 (stating "[t]rauma is certain”); Id. (referring to Appellee’s counsel's “cigarette stained, blood drenched carnivore incisors [which] gleam with the meat of my victims”); Id. at 16, 17, 18 (promising to take a "brutal” approach toward the child); Id. at 16 (noting that the child is "in an open field and he is in my gun sights at short range”). To be fair to the attorney, he has also represented in his brief that the traumatization would be at his own hands, outside the context of the psychological examination, and not at the hands of the defense expert. Nevertheless, in my view, the utter disregard for the child-witness manifest in the balance of counsel’s presentation to this Court enhances the Commonwealth's projection of an adverse impact on its case resulting from counsel’s activities, including his orchestration of the examination, and supports its effort to gain review as of right under Rule 311(d).