                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Willie E. Polite,                              :
                       Appellant               :
                                               :    No. 548 C.D. 2019
               v.                              :
                                               :    Submitted: August 16, 2019
Philadelphia District Attorney’s               :
Office                                         :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                      FILED: September 23, 2019


               In this Right-to-Know Law (RTKL)1 case, Willie E. Polite (Requester)
appeals pro se from the November 28, 2018 order of the Court of Common Pleas of
Philadelphia County (trial court), which affirmed the decision of the Appeals Officer
of the Philadelphia District Attorney’s Office (Appeals Officer) denying his request
for documents from the Philadelphia District Attorney’s Office (District Attorney)
that were associated with the criminal investigation that the police conducted in
connection with what eventually resulted in Requester’s prosecution and conviction
for first-degree murder in 1992 and imposition of a sentence of life imprisonment
without the possibility of parole. See generally Commonwealth v. Polite (Pa. Super.,
No. 1657 EDA 2016, filed April 18, 2017) (unreported) (recounting the facts and




      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
procedural history of Requester’s criminal case, docketed at CP-51-CR-0832881-
1991).2
               On May 18, 2017, Requester submitted a request to the District
Attorney, which stated as follows:

               [Requester,] Case No[.] CP-51-CR-0832881-1991, is
               requesting any and all evidence collected from [the
               deceased victim], including reports of toxicologist done by
               the City of Philadelphia Office of the Medical Examiner[,]
               Department of Health, fingernail samples, anal swabbing,
               [and] oral swabbing, that was compared to the oral
               swabbing, blood, and hair samples taken and tested from
               [Requester], while in police custody, [and] the vaginal
               swabbing includ[ing] the results. These reports will
               demonstrate that the DNA testing of evidence will produce


       2
         Requester is presently incarcerated at the State Correctional Institution at Smithfield. On
January 11, 2019, Requester filed a notice of appeal from the trial court’s November 28, 2018 final
order disposing of his appeal under the RTKL in the Superior Court, which subsequently transferred
the appeal to this Court. Although Requester’s notice of appeal was technically filed beyond the
30-day period for filing an appeal, see, e.g., Pa.R.A.P. 903(a); Koken v. Colonial Assurance
Company, 885 A.2d 1078, 1101 (Pa. Cmwlth. 2005), under the prisoner mailbox rule, a prisoner’s
pro se filing is deemed to have been filed at the time it is given to prison officials or put in the
prison mailbox. Kittrell v. Watson, 88 A.3d 1091, 1096-97 (Pa. Cmwlth. 2014).

        Here, on his notice of appeal and accompanying “affidavit of certificate of service,”
Requester stated that the notice of appeal was “served” on December 16, 2018. Consequently,
assuming some delay occurred during the intervening holidays with respect to the mail, whether it
be within the prison system or postal delivery in general, it is factually plausible that Requester
delivered the notice of appeal to prison officials or placed it in the prison mailbox on or shortly after
this date and, therefore, filed a timely notice of appeal. Under Pennsylvania law, when there are
factual disputes regarding the timeliness of the pro se filing, this Court may remand for an
evidentiary hearing. See Commonwealth v. Jones, 700 A.2d 423, 426 n.3 (Pa. 1997). However, the
District Attorney has not challenged the timeliness of the appeal. In these circumstances, we may
assume that the appeal was filed timely and will proceed to address the appeal on the merits. See
Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (“Where . . . the opposing party does
not challenge the timeliness of the appeal and the prisoner’s assertion of timeliness is plausible, we
may find the appeal timely without remand.”).



                                                   2
              . . . results [that] will establish         [Requester’s] actual
              innocence of the offense charges.
(Brief for Requester at App. B.)
              On May 18, 2017, the District Attorney issued a final response denying
the request based on exemptions to disclosure in the RTKL. Requester then appealed
to the Appeals Officer, who denied the appeal on July 18, 2017. The Appeals Officer
concluded that the requested documents were facially exempt under section
708(b)(16) of the RTKL, 65 P.S. §67.708(b)(16), and the Criminal History Record
Information Act (CHRIA), 18 Pa.C.S. §§9101-9183, because they related to a
criminal investigation.
              Thereafter, Requester filed an appeal to this Court, which, in turn,
entered a per curiam order transferring the matter to the trial court on August 25,
2017. See Polite v. Douglas Weck Esquire (Pa. Cmwlth., No. 1158 C.D. 2017, filed
August 25, 2017) (per curiam order). On November 28, 2018, the trial court denied
Requester’s appeal for substantially the same reasons as the Appeals Officer.
              Before this Court,3 Requester contends that, as a matter of constitutional
law, he is entitled to the requested information because it will provide him with
exculpatory evidence and establish that the District Attorney violated Brady v.
Maryland, 373 U.S. 83 (1963) (holding that the prosecution violates due process
when it fails to disclose evidence favorable to the defendant).
              If a request for records, on its face, seeks documents relating to a
“criminal investigation” or “investigative information,” those documents are exempt
under the RTKL pursuant to section 708(b)(16) or the CHRIA. See Barros v. Martin,

       3
         “Our standard of review is whether an error of law was committed, constitutional rights
were violated, or necessary findings of fact are supported by substantial evidence. Our scope of
review is plenary.” Philadelphia District Attorney’s Office v. Stover, 176 A.3d 1024, 1026 n.3 (Pa.
Cmwlth. 2017).



                                                3
92 A.3d 1243, 1250 (Pa. Cmwlth. 2014); Coulter v. Department of Public Welfare,
65 A.3d 1085, 1090 (Pa. Cmwlth. 2013).
             Section 708(b)(16) exempts from access “[a] record of an agency
relating to or resulting in a criminal investigation,” including, but not limited to,
“[i]nvestigative materials, notes, correspondence, videos and reports.”        65 P.S.
§67.708(b)(16)(ii). Moreover, a record is not considered a public record under the
RTKL, and cannot be disclosed, if it is protected under some other state law,
including the CHRIA. Barros, 92 A.3d at 1250; see section 102 of the RTKL, 65
P.S. §67.102. Section 9106(c)(4) of the CHRIA provides that “[i]nvestigative 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.” 18 Pa.C.S. §9106(c)(4). The CHRIA defines “investigative
information” 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 and may include modus operandi information.” Section 9102 of the
CHRIA, 18 Pa.C.S. §9102.
             Significantly, Requester does not make any argument that the requested
documents are not exempt from disclosure under section 708(b)(16) the RTKL or the
pertinent provisions of the CHRIA. We nevertheless note, though, with a strong
degree of certainty, that such an assertion would lack merit according to our
precedent. For example, in Barros, this Court concluded that documents requested
by a prisoner from a county district attorney relating to his homicide investigation are
exempt from disclosure, and we specifically determined that the RTKL and the
CHRIA prohibited the release of forensic laboratory reports. Likewise, in Hunsicker
v. Pennsylvania State Police, 93 A.3d 911 (Pa. Cmwlth. 2014), we concluded that a



                                           4
request to the Pennsylvania State Police for “Any/All available reports regarding” its
criminal investigation into the death of an individual was exempt under section
708(b)(16) of the RTKL. 93 A.3d at 912-13. Finally, in Arroyo v. District Attorney
of Lancaster (Pa. Cmwlth., No. 1624 C.D. 2010, filed June 29, 2011) (unreported),
this Court concluded that the criminal investigation provisions of the RTKL and the
CHRIA protected from disclosure a request for “forensic slides” and “hair samples.”
Slip op. at 9-10.4 Regardless, we cannot reverse an order below based upon an
argument that was not raised by an appellant. See Kohl v. New Sewickley Township
Zoning Hearing Board, 108 A.3d 961, 963 n.3 (Pa. Cmwlth. 2015).
              Addressing Requester’s argument that has been presented to this Court,
we conclude that it fails to establish that the requested documents must be disclosed
pursuant to the RTKL. In Coley v. Philadelphia District Attorney’s Office, 77 A.3d
694 (Pa. Cmwlth. 2013), a requester asserted that he was entitled to witness
statements that were compiled by the District Attorney during a criminal
investigation that resulted in his arrest and conviction for murder. For support, the
requester cited various constitutional provisions and Brady. This Court rejected the
requester’s reliance on this legal authority because it had “no bearing or relevance to
whether the requested records are public records under the [RTKL].” Coley, 77 A.3d
at 696 n.5. We further explained that the requester’s alleged Brady violation was
“not the legal question before us” and confirmed that, in a RTKL case, “the only
question is whether materials in an investigation file of the District Attorney are
‘public records’ that must be disclosed under the [RTKL].” Coley, 77 A.3d at 696

       4
          The Court cites Arroyo, an unreported panel decision, for its persuasive value in
accordance with section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210
Pa. Code §69.414(a). We do the same for the other unreported panel decisions that are cited within
this opinion.



                                                5
n.5; accord, e.g., Lebanon County v. Hoyer (Pa. Cmwlth., No. 597 C.D. 2016, filed
December 7, 2016) (unreported), slip op. at 13. Simply put, while Requester relies on
principles of constitutional law and Brady

             as a means for gaining access to allegedly exculpatory
             evidence related to his criminal homicide trial, an appeal
             from an order denying Requester’s request for access to a
             public record pursuant to the RTKL is not the proper forum
             to gain such relief. Thus, regardless of whether there is any
             merit to Requester’s argument that he is entitled to such
             evidence, such claims are not within the purview of the
             RTKL and we are unable to consider them in Requester’s
             appeal.
Moore v. Allegheny County District Attorney’s Office (Pa. Cmwlth., No. 447 C.D.
2018, filed December 3, 2018) (unreported), slip op. at 9-10.
             Pursuant to our decisions in Coley and Moore, Requester has not
provided this Court with a legal basis upon which to disturb the decision below. We
therefore affirm trial court’s order upholding the denial of his request under the
RTKL.
             As a final housekeeping matter, we summarily address Requester’s
Motion to Strike District Attorney Brief (Motion). In the Motion, Requester claims
that the District Attorney “violated [his] rights as pro se counsel,” Motion, 6/25/2019,
at 1, in failing to file its appellate brief when it was due on June 13, 2019, as directed
in our per curiam order dated May 15, 2019. However, the record reflects that on
June 13, 2019, the District Attorney filed a Petition for an Extension of Time in
Which to File its Brief. On June 18, 2019, this Court entered a per curiam order
granting the District Attorney’s petition and ordering the District Attorney to file its




                                             6
brief on or before June 24, 2019. The District Attorney filed its brief on June 20,
2019. Accordingly, we deny Requester’s Motion.




                                        7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Willie E. Polite,                     :
                    Appellant         :
                                      :      No. 548 C.D. 2019
             v.                       :
                                      :
Philadelphia District Attorney’s      :
Office                                :



PER CURIAM

                                   ORDER


             AND NOW, this 23rd day of September, 2019, the November 28, 2018
order of the Court of Common Pleas of Philadelphia County is hereby
AFFIRMED. The Motion to Strike District Attorney Brief, filed by Willie E.
Polite on June 25, 2019, is hereby DENIED.
