J-S58037-17

                                2017 PA Super 338


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
CARL H. PARKER                             :
                                           :
                    Appellant              :           No. 421 MDA 2017

                Appeal from the Order Entered February 9, 2017
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001476-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY GANTMAN, P.J.:                             FILED OCTOBER 24, 2017

     Appellant, Carl H. Parker, purports to appeal from the order entered in

the Lycoming County Court of Common Pleas, which denied his pretrial

motion   in   limine   for   the   production   of   the   complainant’s   medical,

psychological, psychiatric, and therapy records. For the following reasons,

we quash the appeal.

     The relevant facts and procedural history of this case are as follows.

The Commonwealth arrested and charged Appellant with numerous sex

offenses as a result of allegations that he committed these various offenses

against C.P., a minor, between January 1, 2013 and December 31, 2013. At

the time of the offenses, C.P. was fifteen and sixteen years old; and

Appellant was married to C.P.’s mother.         Around the same time, C.P. was

also receiving psychological support therapy.          C.P. reported the alleged
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sexual abuse on January 15, 2015.

      On November 10, 2016, Appellant filed a motion in limine, including a

motion for production of C.P.’s medical, psychological, psychiatric and

therapy records. The trial court held a hearing on November 18, 2016, on

Appellant’s various motions in limine, including the motion for production.

The trial court denied Appellant’s motions on February 8, 2017. Appellant

filed a notice of appeal on March 8, 2017. No concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) was ordered or filed.

      Appellant raises two issues for our review:

         WHETHER THE TRIAL COURT ERRED IN DENYING THE
         DEFENSE REQUEST FOR PRODUCTION OF MEDICAL,
         PSYCHOLOGICAL, PSYCHIATRIC, AND THERAPY RECORDS
         OF [VICTIM][?]

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
         DETERMINING THAT THE MEDICAL, PSYCHOLOGICAL,
         PSYCHIATRIC, AND THERAPY RECORDS SOUGHT BY
         [APPELLANT] WERE NOT RELEVANT TO ANY OF THE
         ELEMENTS OF THE CRIMES CHARGED[?]

(Appellant’s Brief at 4).

      As a prefatory matter, we must determine whether this appeal is

properly before us.    In Appellant’s response to this Court’s rule to show

cause why the appeal should not be quashed, Appellant argues his defense

motion in limine for the production of C.P.’s medical, psychological,

psychiatric, and therapy records qualifies as a collateral matter; and the

order denying that request is immediately reviewable as a collateral order.

Specifically, Appellant argues the denial of his motion for production is

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separate from and collateral to the issue of whether Appellant is guilty of the

charged sex offenses. Appellant claims he has a right to favorable evidence

and to confront his accuser, which outweighs C.P.’s interest in the non-

disclosure of her confidential records. Appellant asserts that without access

to the potentially exculpatory evidence contained in C.P.’s records, his

defense will be irreparably lost because it rests on C.P.’s credibility, her

delay in reporting, and her reason for the delay.     Appellant submits an in

camera review of C.P.’s records would remove concerns for C.P.’s privilege

and privacy, and allow Appellant to prepare a proper defense.        Appellant

concludes the court’s order denying Appellant’s access to this confidential

information is immediately appealable under the collateral order doctrine.

We disagree.

      Appellate review of any “court order is a jurisdictional question defined

by rule or statute.”    Commonwealth v. Rosario, 615 A.2d 740, 742

(Pa.Super. 1992), affirmed, 538 Pa. 400, 648 A.2d 1172 (1994).            This

principle applies to appellate review of a pretrial order. Commonwealth v.

Jones, 826 A.2d 900, 903 (Pa.Super. 2003) (en banc).             A court may

consider the issue of jurisdiction sua sponte.   Commonwealth v. Grove,

___ A.3d ___, 2017 PA Super 286 (2017) (citing Commonwealth v. Ivy,

146 A.3d 241, 255 (Pa.Super. 2016)). In evaluating our jurisdiction to allow

Appellant’s appeal, we look to other criminal cases involving appeals of

pretrial orders. Id.


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         The general rule in criminal cases is that a defendant may
         appeal only from a final judgment of sentence, and an
         appeal from any prior order or judgment will be quashed.
         In this Commonwealth, an appeal may only be taken from:
         1) a final order or one certified by the trial court as final;
         2) an interlocutory order as of right; 3) an interlocutory
         order by permission; or 4) a collateral order.

                                  *    *      *

         A collateral order is 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.

                                  *    *      *

            In light of the long-standing rule of American
            jurisprudence    that,   except  in   extraordinary
            circumstances, an appeal may be taken only from a
            final order of the court, and in recognition of our
            responsibility to preserve the sanctity of the
            appellate process, …a criminal defendant may not
            appeal from an order of a suppression court even in
            the posture of a cross-appeal.

Id. at 255-56 (internal citations omitted).

      Rule 313 of the appellate rules defines a collateral order as:

         Rule 313. Collateral Orders

         (a) General rule. An appeal may be taken as of right
         from a collateral order of an administrative agency or
         lower court.

         (b) Definition. A collateral order is 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.


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J-S58037-17


Pa.R.A.P. 313.       Rule 313 is jurisdictional in nature.     Commonwealth v.

Blystone, 632 Pa. 260 269, 119 A.3d 306, 312 (2015). “Thus, if a non-final

order satisfies each of the requirements articulated in Pa.R.A.P. 313(b), it is

immediately appealable. However, we ‘construe the collateral order doctrine

narrowly’      so   as   to   ‘avoid   piecemeal   determinations’   and   protracted

litigation.”    Id. at 270, 119 A.3d at 312.           “[T]he requirements for an

appealable collateral order remain stringent in order to prevent undue

corrosion of the final order rule.”        Melvin v. Doe, 575 Pa. 264, 272, 836

A.2d 42, 47 (2003).           “To that end, each prong of the collateral order

doctrine must be clearly present before an order may be considered

collateral.” Id. Concerning whether the issue on appeal directly affects a

right that is too important to be denied review, the question “must involve

rights deeply rooted in public policy going beyond the particular litigation at

hand.’” Id.

      In the instant case, Appellant fails to satisfy the first and second

categories of appeals where the order on appeal is not a final order under

Rule 341 or an interlocutory appeal as of right under Rule 311.            See Ivy,

supra. Regarding the category of interlocutory appeals by permission under

Rule 312, the trial court did not certify the order for immediate appeal and

Appellant did not file a petition for permission to appeal under Rule 1311.

Finally, the order fails to meet the requirements of a collateral order under

Rule 313. In this regard, the trial court reasoned:


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       A ruling on a motion in limine is not a final order for
       purposes of appeal. The [c]ourt believes that the general
       rule in criminal cases: that a defendant may appeal only
       from a final judgment of sentence, and an appeal from any
       prior order or judgment will be quashed is applicable to the
       case at bar, and as such this issue is not reviewable by the
       Superior Court.

       The Superior Court is considering the appeal under
       Pa.R.A.P. 313 (collateral orders): however, the [c]ourt
       believes that the three prongs of Pa.R.A.P. 313 that render
       an interlocutory order…appealable have not been met.

                               *    *    *

       An interlocutory order is [immediately] appealable if (1) it
       is separable from and collateral to the main cause of
       action: (2) the right involved is too important to be denied
       review: and (3) the question presented is such that if
       review is postponed until final judgment in the case, the
       claimed right will be irreparably lost. Appellant’s claim
       fails the third prong. The claim, i.e., that he should be
       able to submit evidence that the [c]ourt is not admitting,
       does not evade review after final judgment. Appellant can
       appeal the denial after trial and will be granted a new trial
       if appropriate.

       If Appellant is ultimately convicted, the [c]ourt’s decision
       to preclude [d]efense evidence can be reviewed through
       Appellant’s right to direct appeal, thus, the claim will not
       [be] lost. [Ivy, supra]. An order is not immediately
       appealable if it cannot be said “that ‘denial of immediate
       review would render impossible any review whatsoever of
       [the] individual’s claim.’” Commonwealth v. Reading
       Grp. Two Props., Inc. 922 A.2d 1029, 1032 (Pa.Cmwlth.
       2007) (citing Commonwealth v. Wells, 719 A.2d 729
       (Pa. 1998)). [Compare] Commonwealth v. Minich[, 4
       A.3d 1063, 1068 (Pa.Super. 2010)] (review of [trial]
       court’s    order     denying     the     Commonwealth’s
       Pa.R.E.404(b) motion to preclude introduction of
       defense evidence would be irreparably lost in the event
       of an acquittal because “constitutional prohibition against
       double jeopardy protects against second prosecution for
       the same offense after an acquittal”). Ivy[, supra] at

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J-S58037-17


           256.     In Minich, the trial court[′s order denied the
           Commonwealth’s motion to preclude and allowed the
           proposed] defense evidence. Here, the [c]ourt has denied
           a [d]efense motion to introduce evidence, rather than
           allow [it]. Should Appellant be found guilty at trial, and it
           is determined that the [c]ourt abused its discretion in
           disallowing the admission of evidence Defense seeks to
           admit, he will have another trial and can introduce that
           evidence. Thus, [Appellant’s] claim is reviewable after a
           final judgment of sentence, if it should ever occur. …

(Trial Court Opinion, dated May 4, 2017, at 1-3) (emphasis in original). We

agree with the trial court. Additionally, we note Appellant’s claim does not

involve defense rights deeply rooted in public policy and going beyond the

particular litigation at hand. See Ivy, supra. Therefore, Appellant’s claim

fails the second and third prongs of the collateral order test. See id.

        Further, we observe Appellant’s claim is not separable and collateral to

the main cause of action, under the first prong of the collateral order test,

because Appellant admittedly wants the confidential documents to use as

exculpatory evidence, to prepare his defense and to impeach C.P. at trial.

Appellant alternatively refers to the confidential information as Brady1

material and as a potential ground to impeach C.P. for her delay or failure to

report the alleged abuse. Thus, Appellant’s claim goes directly to the merits

of his defense in this case.

        Finally, we note independently that the principles enunciated in Ben v.

Schwartz, 556 Pa. 475, 729 A.2d 547 (1999), allowing interlocutory
____________________________________________


1   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).



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J-S58037-17


appeals as collateral orders in special circumstances, do not apply here. The

Ben Court held that an order compelling the production of arguably

privileged information could be deemed immediately appealable under the

collateral order exception to the final order rule. Ben, supra applies in both

criminal and civil cases. See, e.g., Commonwealth v. Kennedy, 583 Pa.

208, 876 A.3d 939 (2005) (applying Ben in criminal context on appeal from

order granting disclosure of arguably privileged materials).        Furthermore,

most cases relying on Ben for an immediate appeal involve trial court orders

permitting disclosure of confidential or privileged materials.        See, e.g.,

Commonwealth v. Williams 624 Pa. 405, 86 A.3d 771 (2014) (holding

discovery order overruling claims of privilege and requiring disclosure of

Commonwealth’s notes concerning trial prosecutor’s interviews, witness

preparation sessions, and witness examination outlines was immediately

appealable under Ben); Commonwealth v. Harris, 612 Pa. 576, 32 A.3d

243 (2011) (concluding court’s order granting Commonwealth’s motion to

declare waived defendant’s privilege concerning confidential communications

with   psychologist   and   permitting   Commonwealth   to   hire    defendant’s

psychologist as expert witness was immediately appealable under Ben).

Compare Commonwealth v. Sabula, 46 A.3d 1287 (2012) (concluding

order denying defendant’s motion to compel enforcement of pre-arrest

agreement between Commonwealth and defendant was not appealable as

collateral order under Ben).


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      Here, the requested documents are indisputably privileged under 42

Pa.C.S.A. § 5944 (declaring as privileged confidential communications to

psychiatrists or licensed psychologists) and this appeal relates to the denial

of a request for disclosure of privileged information. Yet, Ben, supra has

historically been restricted to review of discovery orders granting disclosure

of arguably privileged information, and not to orders denying disclosure of

arguably privileged information.    See Williams, supra; Harris, supra;

Sebula, supra. The order at issue in the present appeal denied Appellant’s

request for disclosure of incontestably privileged material. Lastly, Appellant

had the responsibility to justify the application of Ben, supra to his case;

but he failed to do so.

      Based upon the foregoing, we hold the order presently before us is not

immediately appealable. Accordingly, we quash the appeal.

      Appeal quashed; case remanded for further proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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