For the Defense - Vol. 5, Issue 3 - 34

yet been identified. Here, on the other hand, Mr.
Alston had already been charged with Criminal
Homicide in the victim's death. Simply put, as
Buchanan seems to be readily distinguishable
from Mr. Alston's case, the Superior Court may
have erred in relying on it.
Moreover, the doctrine of standing is a
prudential, judicially created principle designed
to winnow out litigants in a judicial matter.
A party that is not adversely affected by the
matter it seeks to challenge is not aggrieved,
and, therefore, does not have standing to obtain
a judicial resolution. To have standing, the
proponent of an action must have a substantial
interest, an immediate interest, and a direct
interest in the matter at hand. In Mr. Alston's
case, the subpoena was issued to the Medical
Examiner's Office, an independent third party
that is not an agent of the Commonwealth,
nor one represented by the Commonwealth.
It is axiomatic that a person may assert only
violations of his or her own rights. Furthermore,
although the Commonwealth claimed that Mr.
Alston was trying to circumvent the discovery
process under Rule 573, the Pennsylvania
Supreme Court has held that abstract concerns
about compliance with the law are insufficient
to establish standing. Finally, and of significant
importance, the Commonwealth suffers no harm
whatsoever by an independent third party's
compliance with a criminal defendant's subpoena
duces tecum, particularly where, as here, the
Commonwealth conceded that the defendant
is entitled to the information requested. The
Superior Court's opinion seemingly did not take
these considerations into account in broadly
concluding that the Commonwealth had standing
to challenge Mr. Alston's subpoena.
Second, in support of the trial court's quashal
order, the Commonwealth argued that Mr.
Alston's subpoena was nothing more than an
improper attempt to circumvent the discovery
process. Under Rule 573, he was not entitled to
pre-trial discovery at the preliminary hearing
stage, and the information requested by
Mr. Alston was irrelevant at his preliminary
hearing. As to these arguments, the Superior
Court found that tension exists between
Rule 573 on the one hand, and Pa.R.Crim.P.
107 (Contents of Subpoenas) and a criminal
defendant's constitutional right to compulsory
process entitling him to request any potentially
exculpatory information on the other hand.
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The Superior Court resolved the matter by
holding, "we find Pa.R.Crim.P. 573 controlling."
Thus, the Superior Court concluded that even
information that is not in the possession or
control of the Commonwealth, because it is in
the possession of an independent third party, still
constitutes "discovery" governed by Rule 573.
However, this may be a serious and dangerous
misinterpretation of the law.
The Superior Court appeared to disregard
the plain language of Rule 573, which makes
clear that the discovery process applies only
to information that is within the possession or
control of the attorney for the Commonwealth.
The Superior Court also appeared to disregard
the plain language of Rule 107 and its Comment,
which states that criminal defendants may issue
subpoenas prior to their preliminary hearings.
Furthermore, a criminal defendant has a
constitutional right to compulsory process that
allows him or her to request any potentially
exculpatory, non-privileged information, and
such right attaches at the preliminary hearing
stage of a case. Additionally, the Commonwealth
has no right to know the defendant's evidence.
Moreover, the Superior Court seemed to
underappreciate the ethical obligations of
defense attorneys that require them to conduct
investigations in all cases, to commence such
investigations promptly, and to seek relevant
information from all sources. Simply put, the
mere fact that the Commonwealth may have
the ability to access certain information does
not mean that such information belongs to
the Commonwealth, nor does it mean that
the information automatically becomes part
of the discovery process. Accordingly, where,
as in Mr. Alston's case, the information sought
by the defense is neither privileged nor in the
possession or control of the attorney for the
Commonwealth, the defense not only has every
right to immediately subpoena such information,
but to receive it without having to first justify the
request or answer a request for a protective order
from the Commonwealth.
Without a doubt, Alston is a tremendous
"victory" for the defense bar on a few levels.
Although not addressed at length in this article,
the fact that the Superior Court found it had
jurisdiction over Mr. Alston's interlocutory
appeal in the first place is significant in and
of itself, because criminal defendants typically
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