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Commonwealth v. Sellers

Superior Court of Pennsylvania

August 11, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
SEAN PATRICK SELLERS

         APPEAL OF: STEVE RICE, ESQ. Appeal from the Order September 15, 2016 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000339-2014

          BEFORE: SHOGAN, MOULTON, JJ., STEVENS, P.J.E. [*]

          OPINION

          STEVENS, P.J.E.

         Appellant, Steve Rice, Esq., appeals from the order entered in the Court of Common Pleas of Franklin County granting the Commonwealth's motion for a protective order prohibiting him from supplying requested discovery material to his former client, Sean Patrick Sellers. Herein, Attorney Rice asserts the lower court erred in issuing the protective order without a hearing when he has a professional duty to turn over Sellers' case file and where the Commonwealth failed to specify in its Pa.R.Crim.P 573 motion why such discovery was improper. We reverse and remand.

         Attorney Rice represented Sellers during his criminal trial and sentencing, but he withdrew his appearance prior to Sellers' direct appeal, which the Franklin County Public Defender's Office has filed on Sellers' behalf.[1] Months after his withdrawal, Attorney Rice notified the Commonwealth of his intent to honor Sellers' request for a copy of pretrial discovery, including information retrieved from Sellers' cell phone, but Rice first asked the Commonwealth "as a courtesy" if it was aware of any sensitive material that should not be provided to Sellers.

         The Commonwealth responded that Attorney Rice should refrain from sending any discovery to Sellers, as it was of the opinion that only the Franklin County Public Defender, as Sellers' present counsel, was authorized to handle discovery requests made by Sellers. Rice replied that he considered it his duty under rules of professional conduct to provide reasonably practicable discovery disclosure to his former client, and he invited the Commonwealth to file a motion for a protective order in order to seek a court ruling on the matter, which the Commonwealth did pursuant to Rule 573.

         On August 22, 2016, the court entered an interim order directing Rice to refrain from transferring any discovery material to Sellers, and it ordered Rice to file an answer to the Commonwealth's motion, which he filed on September 1, 2016. On September 15, 2016, without first conducting a hearing, the court entered an order in reliance on party filings granting the Commonwealth's motion. Relying on Williams v. Dark, 844 F.Supp. 210, 213-14 (E.D. Pa 1993), the court reasoned that Sellers possessed no constitutional right to his own copy of discovery materials when his counsel, the Franklin County Public Defender's Office, enjoys access to them. This timely appeal followed.

         Attorney Rice presents the following question for our review:

I. DID THE LOWER COURT ERR IN GRANTING THE COMMONWEALTH'S MOTION FOR A PROTECTIVE ORDER WHERE THE COMMONWEALTH FAILED TO MAKE A "SUFFICIENT SHOWING" THAT SUCH ORDER IS APPROPRIATE UNDER Pa.R.Crim.P. 573(F)?

Appellant's brief at 5.

         Attorney Rice contends that the Commonwealth failed to make a "sufficient showing, " as required under Pa.R.Crim.P. 573(F), to support its requested protective order. Rule 573, "Pretrial Discovery and Inspection, " provides under subsection (F) "Protective Orders":

Upon a sufficient showing, the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.

Pa.R.Crim.P. 573(F).

         Here, Attorney Rice maintains, there was no showing at all, let alone a sufficient one, where the court failed to conduct a hearing at which it could have considered the Commonwealth's evidentiary proffer. While he acknowledges that the Commonwealth alleged in its motion that there were sensitive materials in the discovery, and that he, in his answer, admitted that some materials were, in fact, sensitive, there was neither an agreement between the parties that all materials were sensitive nor a particularized ...


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