Submitted November 13, 2012
Appeal from the Order entered on May 25, 2011 in the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0003716-1996.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. CHIEF JUSTICE CASTILLE. Messrs. Justice Saylor, Eakin, Baer, McCaffery and Stevens join the opinion. Mr. Justice Saylor files a concurring opinion. Madame Justice Todd files a dissenting opinion.
MR. CASTILLE, CHIEF
In this capital case pending on collateral review, the Commonwealth appeals the order of the Court of Common Pleas of Lehigh County granting the discovery motion of appellee James T. Williams in connection with his petition filed under the Post Conviction Relief Act (" PCRA" ). See 42 Pa.C.S. § § 9541-9546. The discovery
order directed the Commonwealth to produce to appellee's standby counsel " all notes" prepared by the trial prosecutor " concerning interviews, witness preparation sessions, [and] witness examination outlines" for four of appellee's co-conspirators who were also witnesses at trial. At this Court's request, the parties have also addressed the jurisdictional issue of whether the PCRA court's disposition is a collateral order, appealable pursuant to Rule of Appellate Procedure 313. See Pa.R.A.P. 313. For the reasons that follow, we conclude that the PCRA court's discovery order is immediately appealable pursuant to Rule 313. We further conclude that the PCRA court did not have " good cause" to issue the discovery order under Rule of Criminal Procedure 902(E)(2), the rule governing PCRA discovery in capital cases. Accordingly, we vacate the discovery order and remand for final resolution of appellee's PCRA petition.
On May 29, 1995, appellee murdered Richard White, shooting White three times with a semi-automatic weapon during a drug transaction-related robbery, in which appellee was implicated along with co-conspirators Lamar Peterson, Curtis French, Ralph Logan, and Luis Avila. Appellee was charged with first-degree murder and related crimes, and was tried in the Lehigh County Court of Common Pleas, before the Honorable Edward D. Reibman. Appellee represented himself at trial, with standby counsel assisting; then-Assistant District Attorney (" ADA" ) Maria L. Dantos, Esq., represented the Commonwealth. In 2007, Ms. Dantos was appointed, and later was elected, to the bench of the Lehigh County Court of Common Pleas.
At trial, appellee challenged the credibility of the Commonwealth's witnesses, notably including his co-conspirators and a jail-house informant (a fellow inmate at the Lehigh County Prison, David Miller). Appellee also made personal accusations against the Commonwealth prosecutors, police officers, criminal justice personnel, and against his own standby counsel. Appellee imagined that he was the victim of a vast statewide conspiracy. Appellee called fellow inmate Louis Washington to testify, but then challenged Washington's credibility when Washington testified unfavorably against appellee. Specifically, Washington testified that appellee attempted to threaten him into arranging for an alibi witness (Washington's mother), but instead Washington alerted the Commonwealth. The Commonwealth then arranged for a state trooper to portray Washington's mother at the meeting during which appellee discussed the planned false alibi testimony. An audio recording of the meeting and the trooper's testimony were offered into evidence at trial.
In August 2001, a jury convicted appellee of first-degree murder, robbery, and conspiracy to commit robbery. Appellee was sentenced to death. On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523 (Pa. 2006), cert. denied, 549 U.S. 1213, 127 S.Ct. 1253, 167 L.Ed.2d 88 (2007). In the 2006 opinion, the Court recounted in detail the events surrounding Mr. White's murder.
On March 9, 2007, appellee filed a pro se petition for relief pursuant to the PCRA. Judge Reibman appointed as stand-by counsel the Federal Community Defender
Office for the Eastern District of Pennsylvania (" FCDO" ). In July 2009, following several extensions, appellee filed an amended 189-page petition for post-conviction relief with the aid of the FCDO. On January 7, 2010, the Commonwealth filed a motion to dismiss the PCRA petition.
In March 2010, Judge Reibman recused himself sua sponte in light of Judge Dantos's current position on the Lehigh County bench. Indeed, the entire Lehigh County Court of Common Pleas bench recused and then-President Judge William H. Platt requested the appointment of an out-of-county judge to preside over the matter. This Court appointed Senior Judge John L. Braxton.
In December 2010, Judge Braxton addressed a discovery motion appellee filed in December 2009 and granted appellee relief in part, ordering the Commonwealth to provide appellee with all pre-trial and post-trial communications between witness Louis Washington and former ADA Dantos. The Commonwealth complied. In January 2011, appellee filed a supplementary discovery motion and the PCRA court again granted relief in part, ordering the Lehigh County Prison to provide records reflecting the visitors for Commonwealth trial witnesses Miller, Peterson, French, Logan, and Avila, as well as appellee's witness Washington, between May 1, 1995 and January 31, 2001. On March 23, 2011, the court ordered the Lehigh County Prison to produce the prison records of Washington, Peterson, and French. The PCRA court then held hearings on appellee's claims on March 21 through 24, 2011.
On May 23, 2011, standby counsel and appellee renewed a discovery request for the trial notes of former ADA Dantos regarding " interviews, witness preparation sessions, [and] witness examination outlines" for Peterson, French, Logan, and Avila; the Commonwealth did not receive a copy of the motion until May 25, 2011. The PCRA court entered an order -- erroneously dated May 20 but docketed on May 25, 2011 -- granting appellee's motion without first affording the Commonwealth an opportunity to be heard. The order stated that the Lehigh County District Attorney's Office was to " produce to standby counsel" " [a]ll notes" of former ADA Dantos " concerning interviews, witness preparation sessions, [and] witness examination outlines for Luis Avila, Ralph Logan, Lamar Peterson, and Curtis French." On May 27, 2011, the Commonwealth immediately asked for reconsideration.
During the continuation of PCRA hearings, on June 6, 2011, the PCRA court heard argument on the Commonwealth's reconsideration motion. First, the Commonwealth objected that it did not have the opportunity to be heard on appellee's discovery motion before it was granted. Judge Braxton explained that he had signed the order before boarding an airplane, and that he had difficulty communicating with the parties because he presided over cases in numerous counties throughout Pennsylvania. Judge Braxton did not identify any exigency to defeat the
Commonwealth's right to respond before the Commonwealth was ordered to turn over material from its trial file. On the discovery motion's merits, the Commonwealth argued that the motion should not have been granted because it requested material protected by the work product doctrine and did not meet the " good cause" standard set forth in Criminal Rule 902(E)(2) (no discovery permitted in first capital PCRA proceeding except upon leave of court after showing of good cause). The Commonwealth also asked the Court to review former ADA Dantos's testimony from the earlier hearing because she had testified that she did not prepare notes related to all of the witnesses, and that, if any of the information she had gleaned during pre-trial interviews had been material, exculpatory or impeaching she would have disclosed it under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Appellee responded by claiming that the duty to disclose defeats the work product doctrine. Furthermore, according to appellee, he did not have to accept or rely on what former ADA Dantos said about the information contained in her file notes, because her testimony that the " witnesses were changing the stories to her" gave him good cause for discovery of her notes under Brady. See N.T., 6/6/11, at 204-08, 210, 214-15. The PCRA court then denied the motion for reconsideration but stayed its discovery order to allow the Commonwealth to pursue this appeal. Id. at 219. The court ordered that the file notes be preserved, and the Commonwealth complied. The Commonwealth timely appealed the PCRA court's discovery order. In the meantime, the PCRA court proceeded with hearings on appellee's PCRA petition. The PCRA court did not file a Pa.R.A.P. 1925 opinion explaining its discovery order, nor did it direct the Commonwealth to file a Statement of Errors Complained of on Appeal.
In September 2011, this Court placed the appeal on hold pending resolution of the appeals in Commonwealth v. Harris, 8 EAP 2009 (later decision reported at 612 Pa. 576, 32 A.3d 243 (Pa. 2011)), and Commonwealth v. Pruitt, 630 CAP (later decision reported at 615 Pa. 182, 41 A.3d 1289 (Pa. 2012) ( per curiam )). Having resolved those appeals, the Court acted upon the parties' jurisdictional statements and ordered the matter to be submitted on the briefs. In a per curiam order entered on May 1, 2012, we noted that consideration of jurisdiction was postponed to the merits stage, and directed the parties to brief the following issue before addressing their substantive claims:
1. Whether the PCRA court's discovery order is appealable as a collateral order under Pa.R.A.P. 313 and this Court's decisions in Commonwealth v. Harris, 612 Pa. 576, 32 A.3d 243 (Pa. 2011), Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939 (Pa. 2005), [and] Commonwealth v. Dennis, 580 Pa. 95, 859 A.2d 1270 (Pa. 2004), and specifically:
(a) whether PCRA discovery orders that allegedly violate rules of discovery, see e.g., Pa.R.Crim.P. 902 or this Court's decisions as to the parameters of permissible discovery, see e.g.,
Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (Pa. 1999), are collateral orders under Rule 313;
(b) whether an assessment of the merits of the challenge to the PCRA discovery order may be used to differentiate those discovery orders that are appealable under Rule 313 from those discovery orders that are not.
Order dated 5/1/12, No. 627 CAP. In addition, the Commonwealth raised the following substantive claims in its appeal:
2. Was the PCRA court's grant of defendant's Renewed Motion for Discovery erroneous where the items ordered to be provided are clearly privileged pursuant to the work-product doctrine and Pa.R.Crim.P. 573, and are not discoverable under the circumstances and facts in this case?
3. Was the PCRA court's grant of defendant's Renewed Motion for Discovery fundamentally erroneous because defendant had clearly not established " good cause" as required by Pa.R.Crim.P. 902(E)(2)?
Commonwealth's Brief, at 3-4.
We will begin by addressing the jurisdictional issue. See United States Orgs. for Bankr. Alternatives, Inc. v. Dep't of Banking, 611 Pa. 370, 26 A.3d 474, 476-77 (Pa. 2011). " A jurisdictional challenge is typically a threshold question, with review of the substantive issues following a jurisdictional question only if the court is found to possess jurisdiction." Burger v. Sch. Bd. of McGuffey Sch. Dist., 592 Pa. 194, 923 A.2d 1155, 1161 (Pa. 2007) (citing MCI WorldCom, Inc. v. Pa. Pub. Util. Comm'n, 577 Pa. 294, 844 A.2d 1239, 1249 (Pa. 2004)).
The Commonwealth argues that this Court has jurisdiction over its appeal from the PCRA court's discovery order, which permitted appellee access to the notes of the trial prosecutor regarding pre-trial interviews, witness preparation sessions, and witness examination outlines for witnesses Peterson, French, Logan, and Avila. According to the Commonwealth, the discovery order is a collateral order appealable under Appellate Rule 313. The Commonwealth notes that, to be appealable under Rule 313, an order must be separable from the main cause of action; the right implicated must be important; and the claim must be such that, if immediate review is denied, the claim will be irreparably lost. Commonwealth's Brief, at 18 (citing Rule 313 and
Harris, 32 A.3d at 248). The order here, the Commonwealth asserts, meets all three requirements.
First, the Commonwealth argues that the discovery order, which rejected the work product doctrine protection asserted by the Commonwealth, is separable from and collateral to the main dispute regarding appellee's numerous PCRA claims alleging a wrongful conviction and improper sentencing. The Commonwealth notes that the order is not fatally entangled with resolution of the PCRA claims and, in fact, PCRA proceedings continued after the Commonwealth filed its notice of appeal. Second, according to the Commonwealth, protecting the work product of an attorney in a criminal case is an issue recognized as " important" because the doctrine " shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case," which is vital " in assuring the proper functioning of the criminal justice system." Commonwealth's Brief, at 23 (quoting United States v. Nobles, 422 U.S. 225, 238-39, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)). The Commonwealth states further that this appeal addressing an asserted entitlement to a prosecutor's notes to attempt to establish a Brady violation affects individuals other than the parties in this appeal.
Finally, the Commonwealth claims that its right to non-disclosure of the trial prosecutor's work product will be irreparably lost if review is deferred, because review after disclosure is inadequate to vindicate the right. The Commonwealth notes that, in
Commonwealth v. Harris, supra, this Court recently declined to follow the U.S. Supreme Court's decision in Mohawk Industries,
Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), a case which held that federal discovery orders that allegedly violate the attorney-client privilege are not immediately appealable. The Mohawk Court reasoned that an appeal following a final decision below could adequately vindicate the privilege, since the aggrieved litigant could proceed to a new trial at which the privileged material would be excluded. The Commonwealth explains that the Harris Court, which considered a PCRA petitioner's appeal, rejected the premise that an appeal following judgment would adequately protect a litigant in Pennsylvania, given that " the bell cannot be unrung" and the Court's prior decisions in this area. Commonwealth's Brief, at 19-20 (citing Harris, supra; Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (Pa. 1999)).
Once a prosecutor's work product documents are disclosed, the Commonwealth argues, the information may be repeated, copied, transferred, and reproduced at will; unless immediately appealable, an erroneous order would irremediably reveal information to a defendant and his counsel. According to the Commonwealth, a defendant would therefore be " unjustly enriched with indiscoverable [sic] materials" that could be used to generate derivative materials and claims. The prospect of such disclosure would affect future prosecutions, by altering the course of investigations, affecting trial preparation, and changing the nature of witness examinations. Deferring review in cases where the work product doctrine is asserted, the Commonwealth claims, would not merely be inconvenient but would effectively vitiate the interests protected by the doctrine. The Commonwealth views the work product doctrine as protecting privileged information and, as a result, asserts that the law is settled regarding the appealability of the order below. Commonwealth's Brief, at 25 (citing Harris, supra; Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939 (Pa. 2005); Commonwealth v. Dennis, 580 Pa. 95, 859 A.2d 1270 (Pa. 2004)).
The Commonwealth also argues that judicial economy is served by permitting an appeal as of right under Rule 313 for orders alleged to violate PCRA discovery rules. Id. (citing Pa.R.Crim.P. 902(E)). Under Rule 902(E)(2), the Commonwealth notes, discovery is not as of right; rather, it is prohibited unless the capital PCRA petitioner shows good cause. According to the Commonwealth, it is important to permit review to reaffirm that discovery orders like this one are overly broad, as they permit the capital petitioner " to go rummaging about" in the trial prosecutor's files. Id. at 28 (citing Commonwealth v. Pruitt, 41 A.3d at 1290 (Castille, C.J., concurring, joined by McCaffery and Orie Melvin, JJ.)). The delays accompanying erroneously broad discovery orders, the Commonwealth argues, might benefit certain PCRA petitioners but would harm victims, their families, and defendants with meritorious claims. Moreover, the Commonwealth reemphasizes the irremediable direct and collateral damage that disclosure of work product-protected documents can cause. Finally, the Commonwealth asserts that alternative avenues of review, such as certification of an interlocutory order pursuant to Rule 1311 of the Rules of Appellate Procedure, are " unrealistic and insufficient" where a discovery order regarding a prosecutor's files and work product is implicated.
The Commonwealth ultimately argues in favor of a holding that all PCRA discovery orders alleged to violate Rule 902 should be deemed appealable collateral orders under Rule 313, since a bright-line rule would provide clear guidance. Under that approach, the ...