Commonwealth v. McKnight

305 A.3d 582

COMMONWEALTH of Pennsylvania, Appellant

v.Shannon MCKNIGHT

No. 66 WDA 2023

Superior Court of Pennsylvania.

Argued August 15, 2023

Filed October 23, 2023

Reargument Denied January 3, 2024

Appeal from the Order Entered January 12, 2023, In the Court of Common Pleas of Washington County, Criminal Division, at No(s): CP-63-CR-0001628-2022, Valarie S. Costanzo, J.

Leslie L. Ridge, Assistant District Attorney, Washington, for Commonwealth, appellant.

Paul C. Schneider, Washington, for appellee.

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.:

The Commonwealth appeals from the trial court’s January 12, 2023 pretrial order directing that it shall provide information requested in Appellee’s, Shannon McKnight, "Request for Bill of Particulars Pursuant to Pa.R.Crim.P. 572(A)" ("Request"). After careful review, we affirm.

We summarize the pertinent background of this case, as follows. On December 20, 2022, the Commonwealth filed a Bill of Information ("Information") charging Appellee with, inter alia, two counts of first-degree murder (18 Pa.C.S. § 2501(a)) and one count of attempted murder (18 Pa.C.S. § 901(a)). The Information alleges that Appellee caused the death of a three- month-old infant, N.M., by poisoning the infant with fentanyl. The Information also alleges that Appellee attempted to murder a 16-month-old toddler, K.M., also with fentanyl.¹ On December 20, 2022, the Commonwealth filed a "Notice of Aggravating Circumstances" for purposes of seeking the death penalty.

On December 22, 2022, Appellee submitted the Request to the District Attorney’s Office, wherein the Commonwealth was asked to provide Appellee with the following:

1. In what manner was fentanyl and/or a combination of drugs and/or a chemical compound and/or an illegal substance introduced to N.M.?

2. In what manner was cocaine and/or fentanyl and/or a combination of drugs and/or dangerous metabolites introduced to K.M.?

Request at 1 (unnumbered single page). Appellee also stated in the Request that without those particulars, she does not know what is being alleged as the actus reus in counts one through three, and that she cannot adequately prepare for trial without the information. Id.

On January 4, 2023, the Commonwealth filed a response to the Request in which the Commonwealth refused to provide the requested particulars. The Commonwealth argued that Appellee was using thé requested particulars to improperly seek the Commonwealth’s evidence. On January 9, 2023, Appellee filed a motion asking the trial court to direct the Commonwealth to provide the information sought in the Request. On January 12, 2023, the trial court entered an order directing the Commonwealth to "provide the information requested in Defendant’s Request for Bill of Particulars." Order, 1/12/23, at 1 (unnumbered single page). The order further provides that the Commonwealth’s "[f]ailure to provide adequate responses to these inquiries may result in a prohibition against alleging specific intent to kill and the death penalty." Id.

The Commonwealth filed a timely Notice of Appeal from the trial court’s order on the same date. The Commonwealth certified that the order terminates or substantially handicaps its prosecution of Appellee’s case pursuant to Pa.R.A.P. 311(d). The trial court thereafter ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the Commonwealth timely complied. The court filed its Rule 1925(a) opinion on March 7, 2023. Herein, the Commonwealth states four issues for bur review:

A. did the [c]ourt err in requiring the Commonwealth to answer [Appellee’s] Request for Bill of Particulars?

B. Did the [c]ourt err in requiring the Commonwealth to answer [Appellee’s] Request for Bill of Particulars where the [Appellee] was seeking the Commonwealth’s evidence and was not a proper request for a bill of particulars?

C. Did the [c]ourt err by requiring the Commonwealth to respond to [Appellee’s] Request for Bill of Particulars by providing the Defense with its theory of the case?

D. Did the [c]ourt err in ordering that failure to provide adequate responses may result in a prohibition against alleging specific intent to kill and the death penalty?

Commonwealth’s Brief at 7.

Before addressing the Commonwealth’s claims, we must discuss the appealability of the court’s January 12, 2023 order. On February 6, 2023, counsel for Appellee filed a Motion to Quash ("Motion") this appeal, arguing that the "Commonwealth’s interlocutory appeal is premature, as the order to furnish a bill of particulars in this matter does not terminate or substantially handicap the prosecution in this case." Motion to Quash, 2/6/23, at 3 ¶ 14 (unnumbered)., Appellee also argued that there has been no suppression or exclusion of Commonwealth evidence at this point because the trial court’s order informs the Commonwealth that some of their claims "may be suppressed" if the Commonwealth fails to comply with the order. Id. at ¶ 12 (emphasis in original).

By Order dated February 10, 2023, this Court directed the Commonwealth to respond to Appellee’s Motion within seven days. The Commonwealth filed a timely "Answer to Motion to Quash" ("Answer"). Therein, the Commonwealth stressed that the order at issue provides that the failure or refusal to comply with, the order would result in the Commonwealth’s being precluded from seeking the death penalty or even seeking a first-degree murder conviction. The Commonwealth also averred that it is being compelled to give its theory of the case, and that compliance with the order would limit its presentation of its case. Further, the Commonwealth maintained that Appellee’s requests are not a proper subject for a bill of particulars and, instead, are in the nature of a discovery request. Finally, the Commonwealth argued that when a pretrial motion removes evidence from the Commonwealth’s case, only the prosecutor can judge whether that evidence substantially handicaps the prosecutor’s ability to prove every essential element of the case.

[1] On April 3, 2023, this Court issued a per curiam order denying Appellee’s Motion without prejudice to her right to raise the issue before the present merits panel. While Appellee does not reiterate her request that we, quash this appeal in her appellate brief, we "may raise jurisdictional issues sua sponte." A.A v. Glicken, 237 A.3d 1165, 1168 (Pa. Super. 2020) (citations omitted); see also In re Estate of Celia, 12 A.3d 374, 377 (Pa. Super. 2010) ("The appealability of an order directly implicates the jurisdiction of the court asked to review the order. [T]his Court has the power to inquire at any time, sua sponte, whether an order is appealable.") (internal quotation marks and citations omitted). Thus, we examine whether the trial court’s January 12, 2023 order is appealable.

Pennsylvania Rule of, Appellate Procedure 311(d) provides that "[i]n a criminal case, under the circumstances provided by law, the Commonwealth may take ah appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d). This Court has stated that "[w]hile the Commonwealth’s good faith certification under Rule 311(d) is entitled to some deference, this Court need not accept its good faith certification in every case." Commonwealth v. Wright, 99 A.3d 565, 568 n.1 (Pa. Super. 2014); see, e.g., Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 (2003) (finding that the Commonwealth’s appeal from a pretrial ruling that denied its motion in limine to exclude certain defense evidence was not appeal- able under Rule 311(d));, Commonwealth v. Woodard, 136 A.3d 1003 (Pa. Super. 2016) (ruling that the Commonwealth’s appeal from an order denying its motion to consolidate pursuant to, Pa.R.Crim.P. 582 was not appealable under Rule 311(d)); Commonwealth v. Hamilton, 2021 WL 225635 (Pa. Super, filed Jan. 22, 2021) (unpublished memorandum) (concluding that a pretrial order denying the Commonwealth’s Tender Years motion without prejudice to refile the motion prior to trial was not appealable as of right under Pa. R.A.P. 311(d)).²

[2, 3] On the other hand, when a pretrial order has the effect of excluding Commonwealth evidence, this Court is "not permitted" to inquire into the Commonwealth’s good-faith certification. Commonwealth v. Moser, 999 A.2d 602, 605 n.2 (Pa. Super. 2010). Indeed, "[t]he classic case of an interlocutory order appealable by the Commonwealth as of right … is one granting a defense motion to suppress evidence." Commonwealth v. Pownall, — Pa. —, 278 A.3d 885, 889 (2022) (citation omitted). "This category covers all types of orders resulting in the suppression or exclusion of Commonwealth evidence[,]" and also "includes orders that have ‘the practical effect’ of suppressing or excluding evidence." Id. (citing Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 18-19 (1998) (finding that a pretrial order denying the Commonwealth’s motion, for a continuance to secure the presence of a necessary witness was "sufficiently similar to a suppression order to justify an appeal")). Additionally, Rule 311(d) is not limited to suppression-related orders, but may also include "other types of orders ...." Id. (citation omitted). For instance, in Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505, 518 (2005), our Supreme Court found appealable an order quashing some, though not all, offenses charged against Karetny, reasoning that the order "quite definitively terminates the prosecution as to the quashed charge" and "imposes a handicap that the prosecution cannot overcome without a pretrial appeal." We also, note that in Woodard, this Court recognized that the Commonwealth has the right to appeal an order precluding it, from seeking the death penalty. Woodard, 136 A.3d at 1005 (citing Commonwealth v. Buonopane, 410 Pa.Super. 215...