For the Defense - Vol. 5, Issue 3 - 33

the constitutional right to compulsory process
entitles a defendant to request any potentially
exculpatory information, and the materials
he requested were not privileged, Mr. Alston
did not have a burden to demonstrate that
his subpoena should be honored; rather, the
Commonwealth-or, more appropriately, the
Medical Examiner's Office through its legal
representative-had the exclusive burden of
showing that Mr. Alston's subpoena should
be quashed. In other words, the trial court
improperly flipped the burden of proof. Third,
the trial court's order violated due process and
equal protection because it barred only the Public
Defender's Office from issuing subpoenas duces
tecum to the Medical Examiner's Office, and it
applied in all pending criminal cases. Finally, and
at bottom, the Commonwealth's and the trial
court's understanding of the discovery process
was fundamentally wrong, as Rule 573 cannot
apply where the information subpoenaed by
the defense is neither privileged nor in the
possession or control of the attorney for the
Commonwealth.
On May 26, 2020, the Superior Court issued
its published opinion in Commonwealth v.
Alston, --- A.3d ---, 2020 WL 2703059 (Pa. Super.
May 26, 2020). After determining that it had
proper jurisdiction pursuant to the collateral
order doctrine, the Superior Court unanimously
reversed the trial court's quashal order. As the
Superior Court explained,
the order is overly broad and constitutes an
abuse of the trial court's discretion. .... The
order goes beyond quashing the subpoena
duces tecum filed by Appellant in the instant
case or otherwise sanctioning Appellant
for a violation of Pa.R.Crim.P. 573(A). It
prevents any individual represented by the
Public Defender from issuing a subpoena
duces tecum to the MEO prior to the time
set forth in Pa.R.Crim.P. 543(A) without
showing a reasonable basis before the
trial court. Thus, we find the order is not
'just under the circumstances' because it
will have ramifications beyond the instant
case, impacting all defendants who are
represented by the Public Defender.
The Superior Court continued, "even if the
order was directed solely at Appellant, we would
be constrained to reverse." In this regard, the
Superior Court observed that, although Mr.

Alston's case involved a subpoena duces tecum
served upon a third party rather than a motion
for discovery served upon the Commonwealth,
Rule 573(F) allows the Commonwealth to seek
a protective order if it "believes the discovery
sought is improper or beyond the scope of Rule
573." If the Commonwealth meets its burden of
making a sufficient showing, the burden then
shifts to the defendant. "Thus, if the order had
been directed solely to Appellant in this case,
we would conclude that the trial court did not
abuse its discretion in requiring a showing of
reasonableness. However, to issue a blanket
quashal order without a hearing or giving
Appellant an opportunity to respond and meet
his burden was an abuse of discretion and not
'just under the circumstances,' as required by
Pa.R.Crim.P. 573(E). For this reason also, the order
must be reversed."
Fantastic decision for the defense, right!?
Maybe not.
	
To be sure, the Superior Court correctly
held that it had jurisdiction over the sum and
substance of Mr. Alston's appeal, and that the
trial court's quashal order had to be reversed.
Nonetheless, the Superior Court made several
critical findings along the way that seem
manifestly inconsistent with the law, and
detrimental to criminal defendants.
First, with respect to whether the Commonwealth
has standing to quash a subpoena duces tecum
served upon an independent third party,
the Superior Court acknowledged that this
"appears to be an issue of first impression in the
Commonwealth," but it resolved the matter in the
Commonwealth's favor pursuant to In re Randy
Buchanan, 880 A.2d 568 (Pa. 2005). However,
Buchanan appears to be inapposite.
Buchanan did not involve a presumptively valid
subpoena duces tecum but merely a "written
request," and the Buchanan Court did not
specifically hold that the Commonwealth has
standing to challenge a request submitted to
the Medical Examiner's Office to turn over an
individual's autopsy report. Furthermore, the
request in Buchanan was made by a newspaper,
not by the criminal defendant who was charged
with the individual's murder and who is entitled
to obtain the autopsy report. Additionally, the
request in Buchanan was made while the criminal
investigation was ongoing, and a suspect had not
Vol. 5, Issue 3 l For The Defense 33
For the Defense - Vol. 5, Issue 3

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