J-A26010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH BOULWARE                            :
                                               :
                       Appellant               :   No. 1531 WDA 2018

             Appeal from the Order Entered September 24, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-MD-0004811-2018


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 19, 2020

       Appellant, Joseph Boulware, brings an interlocutory appeal from the trial

court’s September 24, 2018 order quashing a subpoena duces tecum served

on his behalf. After careful review, we reverse the trial court’s order.

       On June 26, 2018, Appellant was charged with one count of criminal

homicide in relation to the death of Ella Hooper.1 Appellant qualified for the

services of the Allegheny County Public Defender’s Office (“the Public

Defender”).     On September 5, 2018, Appellant served a subpoena duces

tecum on the Records Custodian of the Allegheny County Medical Examiner’s

Office (“MEO”) pursuant to Pa.R.Crim.P. 107 seeking “all autopsy slides and

photographs produced from the autopsy of Ella Hooper[,] which was


____________________________________________


1   18 Pa.C.S § 2501(a).
J-A26010-19


performed on October 12, 2016[,] by Dr. Baiyang Xu.” Court Subpoena,

9/5/18.     Appellant requested that the MEO provide the materials by

September 14, 2018. Id. The MEO neither complied with the subpoena nor

filed a motion to quash.

       On September 24, 2018, the Allegheny County District Attorney (“the

DA”) filed a motion to quash the subpoena and sought a ruling that would

prohibit the Public Defender from issuing subpoenas duces tecum to the MEO

in any criminal case absent a showing of reasonableness. Commonwealth’s

Motion to Quash Subpoenas and Motion for Order of Court Pursuant to

Pa.R.Crim.P. 573(E), 9/24/18. The court did not hold a hearing on the motion

and granted the Commonwealth’s motion the same day it was filed. The trial

court entered the following order:

            AND NOW, to-wit, this 24th Day of September 2018 it is
       hereby ORDERED, ADJUDGED and DECREED that the subpoenas
       [duces] tecum issued in Commonwealth v. Alston and
       Commonwealth v. Boulware are hereby QUASHED.[2]

             Pursuant to Pa.R.Crim.P. 573 (E), [the Public Defender] is
       hereby PROHIBITED from issuing subpoenas duces tecum to the
       [MEO] for documentary evidence and/or investigative materials in
       all active criminal cases prior to the time prescribed by
       Pa.R.Crim.P. 573(A) absent a showing to this Honorable Court
       that there is a reasonable basis to subpoena said requested
       materials.



____________________________________________


2 A similar subpoena was served on the MEO on behalf of Calvin Alston, whose
appeal was docketed at 1530 WDA 2018. As discussed infra, this Court
decided Commonwealth v. Alston, __ A.3d __, 2020 PA Super 123 (Pa.
Super. filed May 26, 2020) on May 26, 2020.

                                           -2-
J-A26010-19


Order, 9/24/18. Appellant filed a response to the motion to quash/motion to

reconsider on September 25, 2018. The trial court did not rule on Appellant’s

September 25, 2018 motion within thirty days of the quashal order, and

Appellant filed his interlocutory appeal with this Court on October 24, 2018.

       On November 9, 2018, after the filing of the instant appeal, the trial

court held a hearing on several motions presented by Appellant, including the

issue relating to the subpoena. At that hearing, the parties presented their

legal arguments on the propriety of the September 24, 2018 order, but the

trial court did not vacate the order.3 The trial court did not order Appellant to

file a Pa.R.A.P. 1925(b) statement nor did it file a Pa.R.A.P. 1925(a) Opinion.

       Appellant presents the following questions for our review:

       I.     Whether this Honorable Court has jurisdiction over the
              instant appeal pursuant to the collateral order doctrine?

       II.    Whether the [DA] has standing to seek to quash a subpoena
              duces tecum issued by the defense to a third party when the
              third party is not an agent of the prosecution?

       III.   Whether the trial court’s order, a blanket prohibition on the
              [Public Defender] from issuing subpoenas duces tecum to
              the [MEO] in all criminal cases, and which specifically applies
              only to the [Public Defender], impermissibly treats indigent
              criminal defendants differently than other similarly situated
              criminal defendants, in violation of the federal and state
              constitutional principles of equal protection and due process
              of law?


____________________________________________


3  The trial court also denied Appellant’s motion to reconsider, motion for a
reasonable basis hearing, motion to certify the September 24, 2018
interlocutory order for appeal, and motion to stay the proceedings.

                                           -3-
J-A26010-19


      IV.   Because a subpoena duces tecum is presumed valid in
            criminal cases, the constitutional right to compulsory
            process entitles a criminal defendant to request any
            potentially exculpatory, non-privileged information, and the
            materials requested are not privileged, whether the trial
            court’s order impermissibly shifted the burden of proof by
            requiring the defense to demonstrate that the subpoena
            duces tecum should be honored, rather than requiring the
            party subject to the subpoena duces tecum to demonstrate
            that it should be quashed?

      V.    Where [Appellant] issued a valid subpoena duces tecum to
            the [MEO], requesting materials that are neither privileged
            nor in the possession or control of the prosecution, whether
            the trial court’s order quashing said subpoena duces tecum
            is unsupported by Pa.R.Crim.P. 573 (Pretrial Discovery and
            Inspection) as well as violates [Appellant’s] federal and
            state constitutional rights to effective confrontation,
            compulsory process, due process, a fair trial, a complete
            defense, and the effective assistance of counsel?

Appellant’s Brief at 4–5 (questions reordered for ease of disposition).

      The trial court granted the Commonwealth’s motion to quash the

subpoena duces tecum in the instant appeal and the motion to quash filed in

Alston, __A.3d__, 2020 PA Super. 123, in a single order. Order, 9/24/18.

The appeal in Alston and the instant appeal were listed sequentially on our

docket. Further, the facts and analysis are so similar that the briefs filed by

both the Commonwealth, Appellant herein, and the appellant in Alston

essentially are duplicates, other than changes to names, dates, and the

addition of two charges against the appellant in Alston. This Court’s opinion

in Alston was filed on May 26, 2020. Therein, we found that the trial court’s

order was a collateral order, subject to our review, and that the district



                                     -4-
J-A26010-19



attorney had standing to challenge the subpoena duces tecum.            Alston,

__A.3d__, 2020 PA Super 123, *3-4.       We further found that the trial court’s

order constituted an abuse of discretion, which required reversal of the order.

Id. at 5-9. Our decision in Alston is controlling in the instant case; therefore,

we reverse the trial court’s order for the reasons set forth in the Alston

opinion.

      Order reversed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2020




                                      -5-
