J-A10011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN      RE:      TWENTY-SECOND :           IN THE SUPERIOR COURT OF
    INVESTIGATING GRAND JURY OF :                   PENNSYLVANIA
    CHESTER COUNTY                 :
                                   :
                                   :
    APPEAL OF: JOHN WESLEY HARRIS  :
                                   :
                                   :
                                   :           No. 2118 EDA 2019

                   Appeal from the Order Dated July 10, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                            No(s): 2091 MISC. 2019,
                CP-15-CR-0004062-2018, Docket No. 22-02-01,
                               Investigation No. 2


BEFORE:      BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                               FILED JULY 31, 2020

        John Wesley Harris appeals from the July 10, 2019 order that denied his

petition to quash a grand jury subpoena issued to his wife.1 Based on the

following discussion, we quash this appeal as interlocutory.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  Ordinarily, our Supreme Court exercises exclusive jurisdiction over matters
pertaining to investigating grand juries and the subpoenas issued by such
tribunals. See Pa.R.A.P. 3331(a)(2)-(5); 42 Pa.C.S. § 722(5). However, the
High Court’s purview does not encompass “issues that collaterally arise in a
plenary criminal prosecution initiated by complaint, information or
indictment.” Commonwealth v. Lang, 537 A.2d 1361, 1363 n.1 (Pa. 1988)
(citing Pa.R.A.P. 3331) (holding that the exclusive jurisdiction of the Supreme
Court over appeals related to grand jury proceedings does not extend to a
“criminal prosecution” that arose as part of an “independent investigation”).
Here, Appellant’s petition to quash a subpoena arose from an independent
criminal prosecution. As such, the Supreme Court’s exclusive jurisdictional
ambit is not applicable here. Id.
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       This appeal concerns allegations that Appellant sexually assaulted his

wife’s best friend in their shared home during the overnight hours of June 2

and June 3, 2018.          On October 18, 2018, the Commonwealth charged

Appellant with rape, involuntary deviate sexual intercourse, sexual assault,

indecent assault, tampering with or fabricating evidence, and aggravated

indecent assault.      On June 17, 2019, Appellant’s wife was subpoenaed to

appear as a witness before the Chester County Investigating Grand Jury.2

Appellant filed a petition to quash the subpoena, claiming that the

Commonwealth could not utilize the grand jury process “‘for the primary

purpose of strengthening the government’s case on a pending indictment or

as a substitute for discovery.’” Appellant’s Petition to Quash, 7/9/19, at ¶ 6

(quoting U.S. v. Jenkins, 904 F.2d 549, 559-60 (10th Cir. 1990)).

       A hearing was held before the trial court overseeing the grand jury

proceedings.     Ultimately, the trial court denied Appellant’s petition on the

grounds that, inter alia, Appellant lacked standing to challenge the subpoena.3

See N.T. Hearing, 7/10/19, at 12-13. Although the trial court did not grant

Appellant permission to appeal from this interlocutory order, an appeal

____________________________________________


2  We note that our determination in this case does not implicate spousal
privilege, or touch upon the privity of matrimony.

3 Accord In re Pa. Crime Commission, 309 A.2d 401, 406 (Pa. 1973) (“In
our view, an individual’s general interest in avoiding investigation does not,
standing alone, afford him standing to object to the enforcement of a
subpoena issued to a third party. Such a general interest is not of sufficient
magnitude to allow intervention.”).


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followed nonetheless.    Appellant and the trial court both complied with

Pa.R.A.P. 1925.   On November 13, 2019, this Court issued a rule to show

cause upon Appellant as to why this appeal should not be quashed as

interlocutory. See Pa.R.A.P. 341(a)-(b). On November 14, 2019, Appellant

substantively responded by generally citing Commonwealth v. Lang, 537

A.2d 1361 (Pa. 1988).

      Before we may consider the merits of this appeal, we must determine

whether it is properly before us. “It is well-established that an appeal to this

court will lie only from a final order, unless a right to appeal is expressly

granted by statute or rule of court.” Blackman v. Katz, 568 A.2d 642, 644

(Pa.Super. 1990); see also Pa.R.A.P. 341. This rule “promote[s] the fair and

efficient administration of justice by discouraging multiple appeals in a single

case and the consequent protraction of litigation.” Blackman, supra at 644.

      Our Supreme Court has held that, “[a]s a general rule, an order denying

a motion to quash a subpoena is considered interlocutory and not subject to

immediate appeal.” In re Twenty-Fourth Statewide Investigating Grand

Jury, 907 A.2d 505, 509 (Pa. 2006)). The High Court has also stated that

orders denying third-party petitions concerning grand jury investigations are

similarly interlocutory for appellate purposes. Lang, supra at 1363.

      The lion’s share of Appellant’s arguments concerning finality baldly

assert that the underlying order must be considered “final” under Rule 341.

The sole substantive argument advanced by Appellant is an allusion to the

aforementioned Supreme Court holding: “In reviewing final orders, the case

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of [Lang] should be noted.      In Lang, the [Supreme] Court allowed the

challenge to the investigating grand jury to proceed in the context of

[Appellant’s] case.” Appellant’s brief at 52.

      Appellant’s reliance upon Lang is greatly misplaced.       In Lang, the

defendant sought the disclosure and review of grand jury testimony for the

purposes of identifying any potential witnesses against him in connection with

his then-pending prosecution for allegedly possessing and selling cocaine. The

trial court granted his motion in part by providing him with transcripts of the

testimony concerning the allegations against him, but denied his request to

review the entirety of the transcripts for alleged exculpatory evidence. Our

Supreme Court reviewed the case to consider “whether the lower court was

correct in holding that an investigating grand jury may continue to investigate

a case even after the subject of the investigation has been formally charged.”

Lang, supra at 1363. Ultimately, the Supreme Court upheld the trial court’s

holding.   Id. at 1366 (“[T]he Investigating Grand Jury Act permits an

investigating grand jury to investigate the criminal activities of an individual

even after that person has been charged with a crime, and that in the context

of our discovery rules, such an investigation does not violate due process.”).

      Setting aside the merits analysis in Lang, our Supreme Court also

clearly found that the trial court’s order denying the defendant’s request for

relief was interlocutory: “Since the lower court’s order is interlocutory,

the case arrived before this court by way of a certification of the lower court




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that its holding involves a controlling question of law as to which there is

substantial ground for difference of opinion.” Id. at 1363 (emphasis added).

       Assuming, arguendo, that Appellant’s petition to quash a subpoena is

sufficiently similar to the relief sought in Lang, there is no express certification

from the trial court permitting an immediate appeal in Appellant’s case. Cf.

Pa.R.A.P. 341(c) (“[T]he trial court or other government unit may enter a final

order as to one or more but fewer than all of the claims and parties only upon

an express determination that an immediate appeal would facilitate

resolution of the entire case.” (emphasis added)). Appellant’s discussion

fails to recognize this critical distinction. Overall, he has offered no cogent

argument to bring this appeal within the ambit of Lang.

       As such, we will quash this appeal as interlocutory.4        Accord In re

Twenty-Fourth Statewide Investigating Grand Jury, supra at 509; see

also Pa.R.A.P. 341.

       Appeal quashed.

       Judge Shogan joins the memorandum.

       Judge Pellegrini concurs in result.

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4  We also note that the collateral order doctrine is inapplicable. See Pa.R.A.P.
313 (permitting interlocutory appeals from “collateral orders,” which are
“separable from and collateral to the main cause of action”). In general,
Pennsylvania courts “have declined to apply the collateral order doctrine and
circumvent the typical path of challenging a subpoena” in the context of grand
jury proceedings. In re Dauphin County Fourth Investigating Grand
Jury, 943 A.2d 929, (Pa. 2007) (citing In re Twenty-Fourth Statewide
Investigating Grand Jury, supra at 511). Here, Appellant has offered no
argument pursuant to the collateral order doctrine.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/20




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