Commonwealth v. Sellers

J-A11040-17
2017 Pa. Super. 260
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN PATRICK SELLERS :
:
: No. 1584 MDA 2016
APPEAL OF: STEVE RICE, ESQ. :
Appeal from the Order September 15, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000339-2014
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 11, 2017
Appellant, Steve Rice, Esq., appeals from the order entered in the
Court of Common Pleas of Franklin County granting the Commonwealth’s
motion for a protective order prohibiting him from supplying requested
discovery material to his former client, Sean Patrick Sellers. Herein,
Attorney Rice asserts the lower court erred in issuing the protective order
without a hearing when he has a professional duty to turn over Sellers’ case
file and where the Commonwealth failed to specify in its Pa.R.Crim.P 573
motion why such discovery was improper. We reverse and remand.
Attorney Rice represented Sellers during his criminal trial and
sentencing, but he withdrew his appearance prior to Sellers’ direct appeal,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A11040-17
which the Franklin County Public Defender’s Office has filed on Sellers’
behalf.1 Months after his withdrawal, Attorney Rice notified the
Commonwealth of his intent to honor Sellers’ request for a copy of pretrial
discovery, including information retrieved from Sellers’ cell phone, but Rice
first asked the Commonwealth “as a courtesy” if it was aware of any
sensitive material that should not be provided to Sellers.
The Commonwealth responded that Attorney Rice should refrain from
sending any discovery to Sellers, as it was of the opinion that only the
Franklin County Public Defender, as Sellers’ present counsel, was authorized
to handle discovery requests made by Sellers. Rice replied that he
considered it his duty under rules of professional conduct to provide
reasonably practicable discovery disclosure to his former client, and he
invited the Commonwealth to file a motion for a protective order in order to
seek a court ruling on the matter, which the Commonwealth did pursuant to
Rule 573.
On August 22, 2016, the court entered an interim order directing Rice
to refrain from transferring any discovery material to Sellers, and it ordered
Rice to file an answer to the Commonwealth’s motion, which he filed on
September 1, 2016. On September 15, 2016, without first conducting a
hearing, the court entered an order in reliance on party filings granting the
____________________________________________
1
Sellers’ direct appeal is presently before this Court, at No. 1122 MDA 2016.
-2-
J-A11040-17
Commonwealth’s motion. Relying on Williams v. Dark, 844 F. Supp. 210,
213-14 (E.D. Pa 1993), the court reasoned that Sellers possessed no
constitutional right to his own copy of discovery materials when his counsel,
the Franklin County Public Defender’s Office, enjoys access to them. This
timely appeal followed.
Attorney Rice presents the following question for our review:
I. DID THE LOWER COURT ERR IN GRANTING THE
COMMONWEALTH’S MOTION FOR A PROTECTIVE
ORDER WHERE THE COMMONWEALTH FAILED TO
MAKE A “SUFFICIENT SHOWING” THAT SUCH ORDER
IS APPROPRIATE UNDER Pa.R.Crim.P. 573(F)?
Appellant’s brief at 5.
Attorney Rice contends that the Commonwealth failed to make a
“sufficient showing,” as required under Pa.R.Crim.P. 573(F), to support its
requested protective order. Rule 573, “Pretrial Discovery and Inspection,”
provides under subsection (F) “Protective Orders”:
Upon a sufficient showing, the court may at any time order that
the discovery or inspection be denied, restricted, or deferred, or
make such other order as is appropriate. Upon motion of any
party, the court may permit the showing to be made in whole or
in part, in the form of a written statement to be inspected by the
court in camera. If the court enters an order granting relief
following a showing in camera, the entire text of the statement
shall be sealed and preserved in the records of the court to be
made available to the appellate court(s) in the event of an
appeal.
Pa.R.Crim.P. 573(F).
Here, Attorney Rice maintains, there was no showing at all, let alone a
sufficient one, where the court failed to conduct a hearing at which it could
-3-
J-A11040-17
have considered the Commonwealth’s evidentiary proffer. While he
acknowledges that the Commonwealth alleged in its motion that there were
sensitive materials in the discovery, and that he, in his answer, admitted
that some materials were, in fact, sensitive, there was neither an agreement
between the parties that all materials were sensitive nor a particularized
description of the materials at issue. Consequently, he argues, the
Commonwealth did not meet its burden of presentation under Rule 573(F).
Both the Commonwealth and the lower court respond to Rice’s
argument by contesting his standing to bring the appeal. According to the
lower court, Pennsylvania Rule of Appellate Procedure 501 confers the right
to appeal upon “any party who is aggrieved by an appealable order.” See
Pa.R.A.P. 501. The court observes that decisional law addressing Rule 501
has held that “[a] party is aggrieved when he or she has a “substantial,
direct, and immediate” interest in the subject matter of the appeal. William
Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282-84
(1975). Specifically, “the requirement of a ‘substantial’ interest simply
means that the individual’s interest must have substance—there must be
some discernible adverse effect to some interest other than the abstract
interest of all citizens in having others comply with the law.” Id. at 282.
“The requirement that an interest be ‘direct’ simply means that the person
claiming to be aggrieved must show causation of the harm to his interest by
the matter of which he complains.” Id. (footnote omitted). Finally, “[t]he
remaining requirements of the traditional formulation of the standing test
-4-
J-A11040-17
are that the interest be ‘immediate’ and ‘not a remote consequence of the
judgment.’ [T]hese two requirements reflect a single concern. Here that
concern is with the nature of the causal connection between the action
complained of and the injury to the person challenging it.” Id. at 283.
The court concludes that the order from which Attorney Rice has
appealed does not aggrieve his interests because he no longer represents
Sean Sellers. To the extent anyone holds an interest in the discovery at
issue, it is Sean Sellers, and not Attorney Rice, the court opines, such that
only Sean Sellers’ interests are implicated by the order in question.
For that matter, the court continues, Attorney Rice is not even a party
for purposes of Rules 573(F) and 501, as he no longer represents Sellers
and did not represent him at the time the court issued the instant order
under review.
On the issue of standing, Attorney Rice posits that he is a party under
Section 102 of the Judicial Code, which defines a “party” as “[a] person who
commences or against whom relief is sought in a matter.” 42 Pa.C.S.A. §
102. In this case, Attorney Rice notes, he was the person against whom the
Commonwealth sought relief in the form of a protective order. Rice had
indicated his intent to transmit pretrial discovery materials to Sellers, and
the Commonwealth asked the court to stop Rice from doing so. The order
itself, in turn, constrained Attorney Rice alone, and it addressed neither
Sean Sellers nor the Franklin County Public Defender’s Office in the process.
-5-
J-A11040-17
Attorney Rice also contends that he meets the requirements of an
“aggrieved party” as identified by our Supreme Court in William Penn
Parking Garage. Specifically, Rice points to the Pennsylvania Rules of
Professional Conduct imposing a duty upon a lawyer to “promptly comply
with reasonable requests for information[,]” Pa.R.P.C. 1.4(a)(4), and to
“surrender papers and property to which the client is entitled” upon
termination of representation. See Pa.R.P.C. 1.16(d)2. A client’s file is part
of such information, Rice maintains, citing to Maleski v. Corporate Life
Ins. Co., 641 A.2d 1 (Pa. Cmwlth. 1994).3 Because of the lower court’s
order, Attorney Rice explains, he cannot carry out his professional duty with
respect to a former client presently pursuing direct appeal and who may, if
need be, subsequently file for post-conviction relief and/or a federal motion
for writ of habeas corpus.
____________________________________________
2
Rule 1.16(d) provides:
Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client's interests,
such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property
to which the client is entitled and refunding any advance
payment of fee or expense that has not been earned or incurred.
The lawyer may retain papers relating to the client to the extent
permitted by other law.
Pa.R.P.C. 1.16
3
Decisions of the Pennsylvania Commonwealth Court are not binding upon
the Pennsylvania Superior Court, but we deem the cited case instructive in
addressing the present issue.
-6-
J-A11040-17
Under the present facts, we conclude that Attorney Rice is an
aggrieved party for purposes of the present appeal, as he has articulated a
substantial, direct, and immediate interest—as those requirements are
described in William Penn Parking Garage—in conforming to rules of
professional conduct calling for an attorney to take steps reasonably
practicable to protect the interests of a former client. Here, Attorney Rice’s
former client, Sean Sellers, requested that Rice transmit his case file during
the pendency of his direct appeal, but the lower court entered an order
preventing Attorney Rice from satisfying the request. We, therefore, agree
with Rice’s position that he is an aggrieved party with standing to bring the
present appeal.
We, therefore, may address whether the lower court erred in entering
its protective order without the benefit of either a hearing or an in camera
review of documents specifying the particular nature of the materials at
issue. The record establishes that the Commonwealth filed its motion for a
protective order pursuant to Rule 573, claiming that the case file Attorney
Rice intended to transmit to Sellers contained “sensitive materials.” Without
the benefit of any further information or a hearing, the lower court granted
the motion.
As reproduced above, the plain language of Rule 573(F) provides that
a protective order may be entered upon a “sufficient showing,” which the
movant may accomplish in whole or in part by a submitting a written
statement to be reviewed by the court in camera. Here, the court entered a
-7-
J-A11040-17
protective order upon nothing more than a written statement that the
contested discovery contained “sensitive materials.” We decline to find such
a vague, generalized proffer sufficient to meet the movant’s burden of
presentation under Rule 574(F). Accordingly, we reverse the order entered
below and remand this matter to the lower court, which shall either conduct
a hearing or demand submission of a written statement detailing the
particular nature of the materials in question warranting their non-
disclosure.
Order is reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2017
-8-