J-A31022-17


 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  IN RE: SUBPOENAS IN CASE OF           :    IN THE SUPERIOR COURT OF
  MIELCARZ V. PIETZSCH, ET AL.,         :         PENNSYLVANIA
  CIVIL CASE NO. 160700066 SERVED       :
  BY TOYOTA MOTOR CORPORATION           :
  ON BUCKS COUNTY DISTRICT              :
  ATTORNEY'S OFFICE REQUESTING          :
  DISCLOSURE OF PROTECTED               :
  CRIMINAL INVESTIGATIVE                :
  RECORDS                               :    No. 119 EDA 2017
                                        :
  APPEAL OF: COMMONWEALTH OF            :
  PENNSYLVANIA, BUCKS COUNTY            :
  DISTRICT ATTORNEY'S OFFICE            :



            Appeal from the Order Entered December 15, 2016
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): July Term, 2016 160700066


 IN RE: SUBPOENAS IN CASE OF             :   IN THE SUPERIOR COURT OF
 MIELCARZ V. PIETZSCH, ET AL.,           :        PENNSYLVANIA
 CIVIL CASE NO. 160700066 SERVED         :
 BY JULIA MIELCARZ ON BUCKS              :
 COUNTY DISTRICT ATTORNEY'S              :
 OFFICE REQUESTING DISCLOSURE            :
 OF PROTECTED CRIMINAL                   :
 INVESTIGATIVE RECORDS                   :
                                         :   No. 122 EDA 2017
 APPEAL OF: COMMONWEALTH OF              :
 PENNSYLVANIA, BUCKS COUNTY              :
 DISTRICT ATTORNEY'S OFFICE              :

            Appeal from the Order Entered December 15, 2016
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): July Term, 2016 160700066


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                             FILED JUNE 22, 2018




*Former Justice specially assigned to the Superior Court
J-A31022-17


      In this case, the Bucks County District Attorney’s Office (“DA’s Office”)

appeals from the Court of Common Pleas of Philadelphia County’s (“trial

court’s”) order dated December 12, 2016 and entered on December 15, 2016.

The order denied DA’s Office’s motion to quash a subpoena issued in a civil

case by Toyota Motor Corporation (“Toyota”), which appeal was docketed at

119 EDA 2017. The order also denied DA’s Office’s motion to quash an almost

identical subpoena issued in the same case by Julia Mielcarz (“Mielcarz” and

together with Toyota “Issuers”), which appeal was docketed at 122 EDA 2017.

DA’s Office alleges that the trial court erred in compelling disclosure of certain

materials to litigants in a civil case.   In both appeals, DA’s Office’s claims

center on its contention that the trial court’s order violated the Criminal

History Records Information Act (“CHRIA”), 18 Pa.C.S.A. § 9101 et seq., which

precludes disclosure of criminal investigative information.

      Preliminarily, we conclude that the order denying the motions to quash

is a collateral order and, therefore, we have jurisdiction over these appeals.

As to the merits, we conclude that CHRIA bars disclosure only if the records

were created for the purpose of a criminal investigation. Some of the records

sought in this case are protected by CHRIA; however, further development of

the record is required to determine if other records are protected by CHRIA.

Accordingly, we reverse in part, vacate in part, and remand for further

proceedings consistent with this memorandum.



                                      -2-
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        The factual background of this case is as follows. On December 10,

2014, Jamie Pietzsch (“Pietzsch”) rear-ended a vehicle driven by Mielcarz. On

November 16, 2015, Pietzsch pled guilty to three counts of driving under the

influence – controlled substance,1 two counts of aggravated assault by vehicle

while driving under the influence,2 two counts of recklessly endangering

another person,3 driving under the influence of alcohol – general impairment,4

driving under the influence of alcohol – highest rate,5 reckless driving,6 and

speeding7 in relation to that accident. She was subsequently sentenced to a

term of imprisonment.         See Commonwealth v. Pietzsch, CP-09-CR-

0005239-2015 (C.C.P. Bucks).

        On July 5, 2016, Mielcarz instituted this civil action seeking to recover

for injuries sustained during the accident. Mielcarz’ complaint named several

defendants including, inter alia, Pietzsch and Toyota.        In November and

December 2016, Issuers served DA’s Office with separate subpoenas seeking


1   75 Pa.C.S.A. § 3802(d)(1)(iii), (d)(2), and (d)(3).

2   75 Pa.C.S.A. § 3735.1(a).

3   18 Pa.C.S.A. § 2705.

4   75 Pa.C.S.A. § 3802(a)(1).

5   75 Pa.C.S.A. § 3802(c).

6   75 Pa.C.S.A. § 3736(a).

7   75 Pa.C.S.A. § 3361.

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its complete investigative file relating to the accident.     DA’s Office filed

motions to quash the subpoenas.      On December 15, 2016, the trial court

entered its order denying the motions to quash and directing DA’s Office to

comply with the subpoenas. These appeals followed.8

      DA’s Office presents two issues for our review:

      1. [Does this Court have jurisdiction over these appeals under the
         collateral order doctrine?

      2. Did the trial court err in denying DA Office’s motions to quash
         the subpoenas?]

DA’s Office’s Brief at 4.

      In its first issue, DA’s Office argues that this Court has jurisdiction to

hear these appeals under the collateral order doctrine.       “The question of

whether an order is appealable [] is a question of law.       Accordingly, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. McClure, 172 A.3d 668, 683 (Pa. Super. 2017) (citation

omitted).


8 DA’s Office and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925(a). Although DA’s Office did not include its first issue in its
concise statement, this Court issued rules to show cause directing DA’s Office
to explain why these appeals should not be quashed as interlocutory. DA’s
Office filed responses arguing that the order is subject to review under the
collateral order doctrine. Cf. Kelley v. Pittman, 150 A.3d 59, 64 (Pa. Super.
2016) (citation omitted) (discovery orders are only appealable if they are
collateral orders). In mid-February 2017, this Court discharged the rules to
show cause and indicated that the parties should be prepared to address
jurisdictional concerns in their briefs and at oral argument. Cf. Grimm v.
Grimm, 149 A.3d 77, 83-84 (Pa. Super. 2016) (citation omitted) (explaining
that a party may not waive arguments relating to subject-matter jurisdiction).
                                      -4-
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      Generally, appeals may only be taken from final orders.           Pa.R.A.P.

341(a). One exception to this rule, however, is that a party has a right to

appeal a collateral order.   Pa.R.A.P. 313(a).    Rule 313 defines a collateral

order as “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.” Pa.R.A.P. 313(b).

      DA’s Office argues that the order in question is a collateral order because

it requires the disclosure of privileged and/or confidential information.

According to DA’s Office, without the ability to appeal the trial court’s order it

will be required to violate CHRIA’s provisions and turn over privileged and/or

confidential information to Issuers. After careful consideration, we conclude

that the order denying DA’s Office’s motions to quash satisfies all three

requirements of Rule 313(b).

      First, the order is separate and collateral to the main cause of action.

The order does not involve the merits of the case. Issuers, opposing parties

in the case, are the two appellees before this Court. Our decision on whether

DA’s Office must comply with the subpoenas will not touch on which, if any,

defendants are liable for Mielcarz’ injuries nor the amount of damages (if any)

to which she may be entitled. Second, DA’s Office argues that the information




                                      -5-
J-A31022-17


sought by Issuers is confidential and/or privileged under CHRIA. 9 Protecting

confidential and/or privileged information is a right too important to be denied

review. Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004) (citation

omitted). This Court and our Supreme Court have applied this rule in an array

of contexts. E.g., Commonwealth v. Harris, 32 A.3d 243, 249-251 (Pa.

2011) (order concerning psychotherapist-patient privilege is a collateral

order); Price v. Simakas Co., Inc., 133 A.3d 751, 755 (Pa. Super. 2016)

(order requiring disclosure of information made confidential by federal

regulation is a collateral order).   This case similarly requires production of

documents protected by a privilege and/or made confidential by state statute.

Finally, if review is postponed until final judgment in the case, the claim will

be irreparably lost because DA’s Office “would be forced to disclose

information in conformance with the trial court’s discovery order[].       Such

disclosure could not be undone in a subsequent appeal.” T.M. v. Elwyn, Inc.,

950 A.2d 1050, 1058 (Pa. Super. 2008). Therefore, all three requirements of

the collateral order doctrine are satisfied and we have jurisdiction to reach the

merits of these appeals.

      DA’s Office argues that CHRIA bars it from producing its investigative

file. Thus, in order to resolve these appeals we must interpret CHRIA. Issues


9 We explicitly decline to opine on whether CHRIA’s nondisclosure requirement
is a privilege or whether it merely ensures confidentiality of information. It is
sufficient for our analysis to determine that CHRIA’s nondisclosure
requirement is a privilege and/or ensures confidentiality of information.
                                      -6-
J-A31022-17


of statutory construction are pure questions of law. Therefore, our standard

of review is de novo and our scope of review is plenary. See In re Steele,

177 A.3d 328, 333 (Pa. Super. 2017) (citation omitted).

        We are guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et

seq. See Rancosky v. Washington Nat'l Ins. Co., 170 A.3d 364, 371 (Pa.

2017). “[O]ur paramount interpretative task is to give effect to the intent of

our General Assembly in enacting” CHRIA. Commonwealth v. Grove, 170

A.3d 1127, 1141 (Pa. Super. 2017) (citation omitted). “Generally, a statute’s

plain language provides the best indication of legislative intent. . . . Therefore,

when ascertaining the meaning of a statute, if the language is clear, we give

the words their plain and ordinary meaning.” Commonwealth v. Wise, 171

A.3d 784, 788 (Pa. Super. 2017) (cleaned up). 10           “In reading the plain

language, words and phrases shall be construed according to rules of grammar

and according to their common and approved usage[.]”             Gross v. Nova

Chemicals Servs., Inc., 161 A.3d 257, 264 (Pa. Super. 2017) (cleaned up).

        The Commonwealth Court has explained that “CHRIA’s general purpose

is to control the collection, maintenance, dissemination[,] or receipt of criminal

history record information.”11 Garner v. Bureau of Prof’l & Occupational


10“‘Cleaned up’ is a new parenthetical designed to tell readers that they have
removed extraneous material for readability and guarantee that nothing
removed was important.” Commonwealth v. Kehr, 2018 WL 1077109, *5
n.6 (Pa. Super. Feb. 28, 2018) (cleaned up).

11   CHRIA defines “criminal history record information” as
                                       -7-
J-A31022-17


Affairs, State Bd. of Optometry, 97 A.3d 437, 442 (Pa. Cmwlth. 2014),

citing 18 Pa.C.S.A. § 9103, appeal denied, 112 A.3d 655 (Pa. 2015); see also

Neal v. Pennsylvania State Police, 2013 WL 3944421, *2 n.7 (Pa. Cmwlth.

Mar. 5, 2013) (unpublished memorandum) (“the purpose of [CHRIA] is to

ensure the accuracy of an individual’s criminal history record information[.]”).

      Having set forth CHRIA’s general purpose, we turn to the specific

provision at issue in this case. CHRIA provides that:

      Investigative and treatment information shall not be disseminated
      to any department, agency[,] or individual unless the department,
      agency[,] or individual requesting the information is a criminal
      justice agency which requests the information in connection with
      its duties, and the request is based upon a name, fingerprints,
      modus operandi, genetic typing, voice print[,] or other identifying
      characteristic.

18 Pa.C.S.A. § 9106(c)(4).        “Investigative information” is defined as

“[i]nformation assembled as a result of the performance of any inquiry, formal

or informal, into a criminal incident or an allegation of criminal wrongdoing




      Information collected by criminal justice agencies concerning
      individuals, and arising from the initiation of a criminal
      proceeding, consisting of identifiable descriptions, dates and
      notations of arrests, indictments, informations or other formal
      criminal charges[,] and any dispositions arising therefrom. The
      term does not include intelligence information, investigative
      information[,] or treatment information, including medical and
      psychological information, or information and records specified in
      section 9104 (relating to scope).

18 Pa.C.S.A. § 9102.

                                     -8-
J-A31022-17


and may include modus operandi information.” 18 Pa.C.S.A. § 9102.12 DA’s

Office argues that its investigative file constitutes investigative information

and, therefore, CHRIA proscribes production.       Issuers, on the other hand,

argue that the information they seek is not investigative information and,

therefore, it is subject to subpoena. Cf. Pa.R.C.P. 4003.1(a) (“a party may

obtain discovery regarding any matter, not privileged, which is relevant to the

subject matter involved in the pending action”).

      Our   Supreme     Court   recently   interpreted   CHRIA’s   investigative

information provision in Pennsylvania State Police v. Grove, 161 A.3d 877

(Pa. 2017).13 In Grove, an individual requested dashcam videos from the

Pennsylvania State Police. The Pennsylvania State Police denied the request

and argued that disclosing dashcam video recordings violated CHRIA. Our

Supreme Court disagreed in part. It noted that dashcam videos “are created

when a light or siren is activated, and capture many events, including routine

traffic stops, patrol vehicle travel[,] and any other event a state trooper deems

appropriate to record.” Id. at 895 (citation omitted). Thus, dashcam videos


12 There is no allegation in this case that the records sought by Issuers is
treatment information.

13 The parties before us cite numerous Commonwealth Court cases decided
prior to Grove in support of their arguments that the entire investigative file
was or was not protected by CHRIA. While the guidance included in those
cases is helpful to our resolution of the issues before us, we rely foremost on
our Supreme Court’s decision in Grove to define the scope of CHRIA, as we
are duty-bound to effectuate that decision. See Walnut St. Assocs., Inc. v.
Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa. 2011) (citations omitted).
                                       -9-
J-A31022-17


“are created in many instances that plainly do not involve criminal activity,

and   may     ultimately    be   used    in   civil   proceedings,   administrative

enforcement[,] and disciplinary actions.” Id. (citation omitted). Our Supreme

Court therefore held that “the question of whether information captured on a

particular [dashcam video] is to be excluded from public access under CHRIA

must be determined on a case-by case basis.”              Id. (footnote omitted).

Ultimately, our Supreme Court determined that the video portions of the

dashcam videos were not investigative information protected by CHRIA;

however, the audio portions of the dashcam videos were investigative

information protected by CHRIA because they contained recordings of witness

interviews. See id.14

      Under    Grove,      the   term   “investigative   information”   in   CHRIA

encompasses only information that is created for the purpose of investigating

suspected criminal activity. Otherwise, disclosure of dashcam video of routine

traffic stops or police traveling down the road with lights and sirens activated

would be barred under CHRIA. Our Supreme Court emphasized that disclosing


14 Toyota correctly notes that no party addressed the audio portion of the
dashcam videos before our Supreme Court. See Toyota’s Brief at 16 n.12.
Our Supreme Court, however, explicitly held that the Commonwealth Court
“correctly determined the only potential investigative information on these
[dashcam videos] is contained in the audio portion.” Grove, 161 A.3d at 896
(cleaned up). Hence, even if the parties did not raise the issue, the opinion
of our Supreme Court addressed it. The basis for the court’s refusal to compel
or permit disclosure was that witness interviews, i.e., information gathered as
a result of an investigation into criminal activity, were included in the audio
recording. See id.
                                     - 10 -
J-A31022-17


certain information, such as the dashcam video at issue in Grove, collected

by police for use in possible civil, administrative, or other adjudicatory

proceedings is not barred by CHRIA.        In other words, non-investigative

information is discoverable under Rule 4003.1 of the Rules of Civil Procedure.

      The plain language of the statute supports this reading. CHRIA limits

the scope of the term “investigative information” to those materials gathered

“as a result” of an investigation “into a criminal incident or an allegation of

criminal wrongdoing[.]” 18 Pa.C.S.A. § 9102 (emphasis added). The plain

language of CHRIA does not bar disclosure of information gathered during a

noncriminal investigation. Moreover, CHRIA permits disclosure of criminal

history record information to any individual or non-criminal justice agency

upon request (not just subpoena).       See 18 Pa.C.S.A. § 9121(b).       That

information is generally comprised of publicly available information, such as a

charging document or an arrest record. Hence, our General Assembly enacted

a statutory scheme that permits dissemination of information that is generally

available to the public upon request, permits disclosure of non-investigative

information not generally available to the public when subpoenaed, and

categorically bars disclosure of investigative information (except to criminal

justice agencies in limited circumstances).15


15This statutory scheme comports with the realities of law enforcement in the
twenty-first century. Police often conduct noncriminal investigations. See
Commonwealth v. Gary, 91 A.3d 102, 127 (Pa. 2014) (McCaffery, J.,
opinion announcing the judgment of the court), quoting Cady v.
                                   - 11 -
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      Toyota argues that in order for information to be protected by CHRIA,

the district attorney “must actively direct the police investigation.” Toyota’s

Brief at 14.   This argument conflicts with our Supreme Court’s holding in

Grove that certain information that was gathered by police, not at the active

direction of the district attorney, was protected by CHRIA. See Grove, 161

A.3d at 895-896. Moreover, nothing in the plain language of CHRIA supports

Toyota’s assertion that the district attorney must direct investigative actions

to draw information within the protective scope of CHRIA.

      We also reject Toyota’s argument that past practice indicates that most

governmental agencies in the Commonwealth have complied with similar

subpoenas. See Toyota’s Brief at 19. Erroneous interpretation of CHRIA is

not binding (or even persuasive) with respect to our straightforward

application of Grove and the plain language of the statute. Instead, it merely

reflects the reality that governmental agencies may be unwilling or unable to

allocate the resources and effort expended by DA’s Office in this case.




Dombrowski, 413 U.S. 433, 441-442 (1973) (“local and state police officers
have ‘extensive, and often noncriminal contact with automobiles’ due to the
extensive regulation of motor vehicles, the frequency with which they can
become disabled or involved in an accident on public roads, and the need for
officers to investigate automobile accidents”).      Hence, not all police
interactions with automobile occupants are a result of investigation into
criminal activity. Our Supreme Court recognized this fact in Grove by
enumerating a list of circumstances a police officer may interact with a
motorist which are not a result of an investigation into possible criminal
activity, e.g., routine traffic stops.
                                       - 12 -
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      Mielcarz also advances a constitutional argument in support of her

interpretation of CHRIA.      She contends that if we adopt DA’s Office’s

interpretation of CHRIA, it would result in violations of Brady v. Maryland,

373 U.S. 83 (1963).       Mielcarz’ Brief at 5.    This argument ignores the

Supremacy Clause of the United States Constitution.            Pursuant to the

Supremacy Clause, criminal justice agencies must turn over any information

favorable to a criminal defendant even if protected by CHRIA.               See

Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987) (explaining that under

Supremacy Clause police and prosecutors must comply with Brady even when

doing so violates a state statute).

      Mielcarz attempts to argue that public policy also requires that we adopt

her interpretation of CHRIA. See Mielcarz’ Brief at 20-21. Again, “[w]hen the

words of a statute are clear and free from all ambiguity, the letter of it is not

to be disregarded under the pretext of pursuing its spirit.”        1 Pa.C.S.A.

§ 1921(b). In this case, the words of CHRIA are clear and free of ambiguity.

Thus, we may not rely on public policy arguments to override our General

Assembly’s intent as evidenced by this unambiguous language. Accordingly,

we conclude that a criminal justice agency must produce materials when




                                      - 13 -
J-A31022-17


subpoenaed if those materials were not gathered as a result of an investigation

into criminal activity or wrongdoing.16

      We also find support for our interpretation of CHRIA through comparison

with the Right-to-Know Law (“RTKL”).       Both CHRIA and RTKL deal with

disclosure of information by government agencies. Pursuant to the Statutory

Construction Act, “we construe statutes dealing with the same subject matter

as in pari materia[.]” Commonwealth v. Anderson, 169 A.3d 1092, 1102

(Pa. Super. 2017), citing 1 Pa.C.S.A. § 1932. Thus, the two statute must be

read in pari materia.

      RTKL does not grant public access to “record[s] of an agency relating to

a noncriminal investigation[.]” 65 P.S. § 97.708(b)(17). It similarly does not

grant public access to “record[s] of an agency relating to or resulting in a

criminal investigation[.]”   65 P.S. § 97.708(b)(16).    Hence, in RTKL, our

General Assembly explicitly addressed both criminal investigative information

and noncriminal investigative information. In CHRIA, however, our General

Assembly precluded dissemination only of information pertaining to criminal

investigations.   By comparing these related statutes, we can infer by this

omission that our General Assembly meant only to protect criminal

investigative information under CHRIA. With CHRIA, our General Assembly




16As we conclude that the plain language of CHRIA is clear and unambiguous,
we need not reach the parties’ additional arguments about other tools of
statutory interpretation.
                                    - 14 -
J-A31022-17


made a policy choice to permit disclosure of noncriminal investigative

information by criminal justice agencies when served with a lawful subpoena

under the Federal Rules of Civil Procedure17 or Pennsylvania Rules of Civil

Procedure. See Commonwealth v. Kauffman, 605 A.2d 1243, 1246 (Pa.

Super. 1992) (government is required to turn over subpoenaed documents in

state court civil action even if disclosure is not required by RTKL). Accordingly,

a comparison of CHRIA to RTKL supports the conclusion that noncriminal

investigative information is not protected by CHRIA.

      Having set forth the proper scope of CHRIA’s prohibition on releasing

investigative information, we turn to the specific facts of this case. Issuers’

subpoenas sought DA’s Office’s investigative file, which they contend contains

measurements and photographs of the accident scene, blood alcohol test

results, and other information.18    Some of this information is protected by




17 We note that most district courts in the Third Circuit have held that CHRIA
does not apply in cases pending in federal court involving at least one federal
claim. E.g. D.N. ex rel. Nelson v. Snyder, 2009 WL 1874032, *1 (M.D. Pa.
June 26, 2009), citing Curtis v. McHenry, 172 F.R.D. 162, 164 (W.D. Pa.
1997). These courts have held that CHRIA only applies in federal court cases
when the court’s jurisdiction is based solely on diversity of citizenship.

18 At oral argument, Issuers averred that the police in this case handed over
the materials related to their investigation to DA’s Office and, therefore,
Issuers could not serve a subpoena on the police seeking that information.
We note that it is immaterial whether the police or DA’s Office possess the
information for purposes of CHRIA’s investigative information provision.
CHRIA has a specific section addressing criminal agencies working together
on a case. That section provides that:

                                      - 15 -
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CHRIA as it was gathered as a result of an investigation into Pietzsch’s motor

vehicle offenses. Specifically, blood alcohol tests are not conducted during

routine police action. Instead, they are only performed if there is reason to

believe that a driver was operating a motor vehicle under the influence of

alcohol and/or drugs. In other words, blood test results are the consequence

of investigation into criminal activity. Hence, we conclude that the trial court

erred in denying DA’s Office’s motions to quash with respect to the portions

of the subpoenas seeking blood test results.

      As to the remaining materials in the investigative file, we conclude that

the record is insufficient to determine whether they constitute investigative

information as defined by CHRIA. For example, the record is unclear regarding

whether police took measurements and photographs as a result of an



      A criminal justice agency which possesses information protected
      by this section, but which is not the source of the information,
      shall not disseminate or disclose the information to another
      criminal justice agency but shall refer the requesting agency to
      the agency which was the source of the information. This
      prohibition shall not apply if the agency receiving the
      information is investigating or prosecuting a criminal
      incident in conjunction with the agency possessing the
      information. Agencies receiving information protected by
      this section assume the same level of responsibility for the
      security of such information as the agency which was the
      source of the information.

18 Pa.C.S.A. § 9106(d) (emphasis added). Moreover, as evidenced by Grove,
police files may contain both investigative information and non-investigative
information. Thus, in this case, DA’s Office must disclose the information in
its possession as long as disclosure does not violate CHRIA.

                                     - 16 -
J-A31022-17


investigation into possible criminal activity or whether those measurements

and photographs were taken as part of a typical accident investigation. 19 If

taken during the course of an investigation into possible criminal activity,

CHRIA bars their disclosure. If they were taken during a routine investigation

into an automobile accident, CHRIA does not prohibit their disclosure.20

      For purposes of the trial court’s inquiry, it is immaterial whether “the

prosecution of [Pietzsch] is wholly dependent” on the investigative file. DA’s

Brief at 30. It is similarly irrelevant whether the materials “are absolutely

critical to [Mielcarz] being able to prosecute the claims brought in the

underlying lawsuit,” Mielcarz’ Brief at 5, or if the “criminal case is closed[.]”

Id. at 17. CHRIA neither prohibits nor permits disclosure of information on

those bases. Instead, as noted above, CHRIA protects information based on

the circumstances under which it was gathered. Information obtained as a

result of an investigation into criminal activity is protected.      Information




19 Grove shows that DA’s Office’s averment that these measurements and
photographs were “unquestionably” taken as a result of an investigation into
possible criminal activity, DA’s Office’s Brief at 21, is incorrect. DA’s Office’s
interpretation would mean that CHRIA prohibits disclosing dashcam videos of
traffic stops. Grove, however, specifically held that such dashcam videos are
not protected by CHRIA. Grove, 161 A.3d at 895.

20 DA’s Office argues that remand is inappropriate because Issuers failed to
meet their burden to prove the documents were not protected under CHRIA.
In Grove, however, our Supreme Court held that the agency asserting that
disclosure would violate CHRIA bears the burden of proof. Grove, 161 A.3d
at 895 n.19. Remand is appropriate so that the trial court can make the
necessary factual determinations.
                                   - 17 -
J-A31022-17


gathered as a result of a different inquiry or for a different reason is not

protected.

      The trial court must undertake this analysis for the remaining materials

in the investigative file. In other words, after receiving the full investigative

file from DA’s Office, the trial court must determine whether those materials

were created during the course of an investigation into possible criminal

activity. Although the trial court may review the relevant materials in camera,

it must provide Issuers an opportunity to challenge evidence that DA’s Office

offers to satisfy its burden of proof.   For example, if DA’s Office offers an

affidavit from a police officer regarding the normal process of investigating an

automobile accident, Issuers may seek to depose that police officer and/or

offer an affidavit from a different police officer.21 Hence, although the review

of the investigative file may be in camera, the proceedings may not be

conducted ex parte. We leave it to the sound discretion of the trial court to

fashion an appropriate mechanism by which to conduct this review.

      We emphasize that even if the trial court finds that police suspected

Pietzsch was driving under the influence of alcohol at the time they took the




21 DA’s Office argues that this practice is “unsound.” DA’s Office’s Brief at 35.
In Grove, our Supreme Court explicitly relied on affidavits from the
Pennsylvania State Police when determining if information were protected
under CHRIA. See Grove, 161 A.3d at 895 (citing an affidavit discussing the
general practices of the Pennsylvania State Police’s regarding dashcam
videos). Therefore, the idea is not unsound. Instead, it is endorsed by our
Supreme Court.
                                      - 18 -
J-A31022-17


measurements and photographs, that is not dispositive of whether the

measurements and photographs were taken during the course of an

investigation into possible criminal activity.   Instead, the trial court must

determine whether the measurements and photographs were taken in order

to further such an investigation or whether police routinely take such

measurements and photographs while investigating accidents and did so

because of that routine practice.

      In sum, we conclude that CHRIA only bars disclosure of those portions

of an investigative file gathered or created during the course of an

investigation into criminal wrongdoing. Applying this rule to the facts of this

case, we conclude that CHRIA bars disclosure of the blood test results. We

further conclude that remand is necessary to determine if CHRIA bars

disclosure of the remaining portions of the investigative file. Accordingly, we

reverse in part, vacate in part, and remand for further proceedings consistent

with this memorandum.

      Order reversed in part and vacated in part. Case remanded. Jurisdiction

relinquished.

      P.J.E. Stevens concurs in the result of the memorandum.

      Judge Panella files a dissenting statement.




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J-A31022-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/18




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