J-A08033-21
2021 PA Super 92
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMY MCFALLS :
:
Appellant : No. 249 EDA 2020
Appeal from the Judgment of Sentence Entered December 11, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002346-2018
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: May 10, 2021
Appellant, Amy McFalls, appeals from the judgment of sentence entered
in the Court of Common Pleas of Montgomery County following her conviction
at a bench trial on the charge of driving while under the influence of alcohol
(“DUI”),1 as well as her conviction by a jury on the charges of aggravated
harassment by a prisoner and institutional vandalism.2 After a careful review,
we affirm.
The relevant facts and procedural history are as follows:
At approximately 2:30 a.m., on March 22, 2018, Officer
William Kane and Officer Hagen of the Norristown Police
Department arrived on the scene of a one-car accident on the
1300 block of Sandy Hill Road. Upon arrival, the officers found a
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
2 18 Pa.C.S.A. § 2703.1 and 18 Pa.C.S.A. § 3307(a)(3), respectively.
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vacated Dodge Dakota, [which had] collided with a poll [sic].
There was a witness on the scene, Rogelio Resendiz, shoveling
snow when the officers arrived. He pointed Officer Kane in the
direction of [Appellant], who had left the scene of the accident on
foot.
Officer Kane found [Appellant] at the bottom of a nearby hill
covered in snow and speaking on her cell phone. He engaged her
in conversation and escorted her back to the scene of the accident.
During this interaction, Officer Kane was able to observe
that [Appellant] had bloodshot eyes and trouble walking back to
her car. Once at the scene of the vehicle crash, Officer Kane
placed [Appellant] in handcuffs, informed her that she was under
arrest, and read her the DL-26 form.
The officers transported [Appellant] to the Norristown police
station, where she was placed into a holding cell. While in the
cell, [Appellant] removed her sweater and placed it in the toilet.
[Appellant] then flushed the toilet, causing the toilet to overflow.
In response, several officers entered the cell, handcuffed
[Appellant’s] wrists, and placed a prisoner transport belt around
her waist. Additionally, the officers attempted to shackle
[Appellant’s] legs, so as to prevent further incident while
attempting to clean the cell of the overflowed toilet water. Officer
Stephanie Flynn aided in attempting to physically restrain
[Appellant] so as to shackle her. It was at this time that
[Appellant] spit in the face [of] Officer Flynn[.]
Trial Court Opinion, filed 6/22/20, at 2-3 (footnote and citations to record
omitted).3
Appellant was charged with various offenses, and on November 15,
2018, Appellant served a subpoena upon the Norristown Police Department’s
police chief (“Police Department”). Therein, she directed him (or the custodian
of records) to appear at Appellant’s pre-trial hearing and bring with him:
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3Appellant admits in her brief that surveillance video of what occurred in the
cell was introduced at trial.
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A copy of: Any documents relating to the conduct of [Appellant]
or restraining officers, any records related to any investigation or
use of force against [Appellant], all policies, guidelines, and
training materials promulgated by the department regarding
witness interviews, DUI arrest, the use of force, custody and care
of prisoners, use of force reporting requirements, restraint
procedures for combative prisoners, and persons in custody with
health issues.
Subpoena, filed 11/15/18.
On March 13, 2019, the Police Department filed a motion to quash the
subpoena. Therein, the Police Department asserted the subpoena should be
quashed on the basis it is overly broad, unduly burdensome, and “on its face…
a fishing expedition.” Police Department Motion, filed 3/13/19. The Police
Department indicated Appellant was “seeking the production of a massive
number of documents, none of which have any obvious relevance to
[Appellant’s] guilt or innocence in this matter.” Id. Alternatively, the Police
Department asserted “the proper vehicle [for] this request [of documents]
would be a motion pursuant to [Pa.R.Crim.P.] 573[.]” Id. Thus, the Police
Department requested the subpoena be quashed.
On March 13, 2019, Appellant filed a response to the Police
Department’s motion to quash the subpoena. Therein, Appellant contended
the use of a subpoena to gain access to the requested documents is the proper
vehicle, and her request was not overly broad.
Following a hearing held on March 29, 2019, the trial court filed an order
summarily granting the Police Department’s motion to quash the subpoena.
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On April 9, 2019, Appellant filed a pre-trial discovery motion. Therein,
Appellant indicated she was seeking discovery of the material described in the
exhibit attached to her motion. The exhibit was the subpoena, which Appellant
had served upon the Police Department and the trial court had quashed.
Following a hearing, on April 26, 2019, the trial court filed an order indicating
Appellant’s request was overbroad. The trial court gave Appellant permission
to narrow and refine her discovery request.
On May 1, 2019, Appellant filed a pre-trial discovery motion. Therein,
Appellant relevantly indicated:
[Appellant] refines her request to include those documents,
policies, guidelines, or training material, currently in effect and in
possession of the Norristown police department, promulgated
within the last ten years, used for training in the use of force,
documenting use of force, for determining when use of force is
appropriate and not appropriate, and any policies, guidelines, and
materials related to internal investigations, and possible penalties
for officer misconduct.
Appellant’s Pre-Trial Discovery Motion, filed 5/1/19.
On May 13, 2019, the trial court held a hearing on the pre-trial discovery
motion. The trial court concluded Appellant’s May 1, 2019, request was
overbroad, and the trial court inquired as to the materiality of the request.
Appellant averred the materials were relevant to challenge the credibility of
the police officers. The trial court denied Appellant’s May 1, 2019, discovery
request on the basis it was overly broad and the requested documents were
not material.
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Following a bifurcated one-day bench trial, Appellant was convicted of
DUI on July 1, 2019, and, on September 17, 2019, a jury found Appellant
guilty of institutional vandalism and aggravated harassment by a prisoner. On
December 11, 2019, Appellant was sentenced as to all convictions. The trial
court imposed an aggregate of two months to twenty-three months in prison,
to be followed by two years of probation.
Appellant did not file post-sentence motions, however, on January 9,
2020, she filed a timely counseled notice of appeal. On January 15, 2020, the
trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and on
January 29, 2020, Appellant filed a request for an extension of time. On
February 3, 2020, the trial court granted Appellant’s request for an extension,4
and on February 19, 2020, Appellant filed a counseled Pa.R.A.P. 1925(b)
statement. On June 22, 2020, the trial court filed a responsive Pa.R.A.P.
1925(a) opinion.
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4 In its order, the lower court directed Appellant to file of record and serve
upon the trial court a concise statement of errors complained of on appeal
within twenty-one days of the order. The lower court warned Appellant that
any issue not presented in the Rule 1925(b) statement shall be deemed
waived. Accordingly, the lower court’s order complied with the mandates of
Pa.R.A.P. 1925(b)(3). Further, the record reveals the Clerk of Courts provided
the lower court’s Pa.R.A.P. 1925(b) order to Appellant’s counsel on January
17, 2020, via electronic service. Additionally, in its supplemental Rule 1925(b)
order, in addition to giving Appellant an extension of time, the trial court
specifically indicated all requirements of the previous Rule 1925(b) order
remained in full force and effect. The record reveals the Clerk of Courts
provided the supplemental Rule 1925(b) order to Appellant’s counsel on
February 3, 2020, via electronic service.
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On appeal, Appellant sets forth the following issues her “Statement of
Questions Involved” (verbatim):
I. Were the Defendant/Appellant’s rights to compulsory
process and confrontation afforded by Article 1, Section 9 of
Pennsylvania’s constitution violated when the trial court
quashed and denied requests by Defendant/Appellant, as
improper in form, overbroad, and/or irrelevant, requests for
police department guidelines that the Defendant/Appellant
sought to demonstrate bias at trial?
II. Were the Defendant/Appellant’s rights pursuant to
Pa.R.Crim.P. 646(B)(1) violated when the trial court
provided written charges of the substantive offenses to the
jury but failed to include a written copy of the orally charged
defense of necessity?
Appellant’s Brief at 4-5.
In her first issue, Appellant contends her rights to compulsory process
and confrontation afforded by Article 1, Section 9 of the Pennsylvania
Constitution were violated when the trial court quashed her subpoena.
Specifically, Appellant contends the trial court erred in holding a subpoena
was not the proper vehicle for her request for documents. Further, she asserts
her subpoena was not overly broad, and she articulated a reasonable basis for
the documents. Accordingly, Appellant argues the trial court erred in quashing
her subpoena, which she served upon the Police Department.
Preliminarily, we agree with Appellant that a subpoena may properly be
issued in a criminal case directing a witness to appear before the court, as
well as bring “any items identified or described.” Pa.R.Crim.P. 107. See
Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa.Super. 1999) (holding
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subpoena duces tecum is the proper means to secure information in personnel
files of arresting officers); Commonwealth v. McElroy, 665 A.2d 813, 819-
20 (Pa.Super. 1995) (declining to hold Commonwealth responsible for tape
recordings that were not in possession of prosecution and suggesting proper
procedure for defendant was service of subpoena duces tecum upon proper
custodian of record).
Whether a subpoena shall be enforced rests in the judicial
discretion of the court. We will not disturb a discretionary ruling
of a trial court unless the record demonstrates an abuse of the
court’s discretion. So long as there is evidence which supports
the trial court’s decision, it will be affirmed. We may not substitute
our judgment of the evidence for that of the trial court.
An abuse of discretion is more than just an error in
judgment and, on appeal, the trial court will not be found to have
abused its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
Commonwealth v. Mucci, 143 A.3d 399, 411-12 (Pa.Super. 2016) (citations
omitted).
With regard to obtaining records such as those requested by Appellant,
Appellant must “articulate a reasonable basis for h[er] request; a criminal
defendant is not entitled to a ‘wholesale inspection’ of investigatory files.” Id.
at 412 (citation omitted). See
Mejia-Arias, supra (holding a defendant is
only entitled to review relevant material in the police’s files where there exits
at least some reason to believe the inspection would lead to evidence helpful
to the defense).
Additionally, as this Court has explained:
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A defendant’s subpoena power is not unlimited. According to the
Rules of Criminal Procedure, subpoenas in criminal cases are to
be used not only for trial but also at any other stage, including
hearings in connection with pre-trial motions. Nevertheless,
“when the subpoena is for the production of documents, records,
or things, these should be specified.” [The] right to exculpatory
material does not mean that a defendant has unfettered access to
files not in h[er] possession, nor that [s]he may search
untrammeled through Commonwealth files in order to argue the
relevance of material therein[.]
Mejia-Arias, 734 A.2d at 878 (citations and quotations omitted) (emphasis
in original).
Moreover, as our Pennsylvania Supreme Court has relevantly indicated:
[T]he strong public interest in protecting the privacy and safety of
law enforcement officers, requires a narrowly targeted and
supported request for relevant documents. A defendant has no
right to obtain or review personnel records in the mere hope that
[s]he might uncover some collateral information with which to
challenge the credibility of a police officer.
Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d at 645, 660-61
(2008).5
In the case sub judice, we conclude the subpoena was overly broad.
Given the broad scope of the subpoena, and Appellant’s failure to articulate a
reasonable basis for her request, we conclude the trial court did not abuse its
discretion in quashing the subpoena. Appellant may not engage in a “fishing
expedition” hoping to find something in the police personnel files, disciplinary
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5 In Blakeney, supra, our Supreme Court held the trial court did not err in
quashing a subpoena where an appellant sought the personnel files of two
investigating officers, but he could offer no reasonable basis for his request.
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files, policies, guidelines, or training materials, which might impeach the
credibility of the officers involved in her case. See Mucci, supra. She simply
did not articulate a reasonable basis for her request which was likely to
produce admissible evidence.
Id. Thus, we find Appellant is not entitled to
relief on this basis.6, 7
In her second issue, Appellant contends the trial court violated
Pa.R.Crim.P. 646(B)(1) when it failed to give the jury, for review during
deliberations, a written copy of the defense of necessity charge, which the
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6 To the extent the trial court held the subpoena was an improper vehicle for
Appellant to seek to acquire the documents in the instant case from the Police
Department, we agree with Appellant that this constituted error. See Mejia-
Arias, supra (indicating the use of a subpoena is proper to secure information
in police files). However, as indicated supra, we conclude the trial court
properly quashed the subpoena based on other reasons. Commonwealth v.
Gatlos,
76 A.3d 44, 62 n.12 (Pa.Super. 2013) (“We may affirm the trial
court’s determination on any grounds, even where those grounds were not
suggested to or known by the trial court.”) (citation omitted)). We note
Appellant suggests that, if we agree with the trial court that a subpoena is an
improper vehicle to request documents from a police department, then we
should determine whether the trial court erred in denying her pre-trial
discovery motions. Inasmuch as we agree with Appellant that her subpoena
was a proper vehicle for seeking the documents, we decline to address this
argument further.
7 Moreover, we note Appellant admits in her brief that, to the extent the trial
court erred in quashing her subpoena, “this error does not necessarily require
a new trial” since the trial court’s ruling is subject to the harmless error
standard. Appellant’s Brief at 22. Here, given the overwhelming evidence of
Appellant’s guilt, we conclude any error with regard to the trial court’s ruling
on the subpoena is harmless. See Commonwealth v. Young,
561 Pa. 34,
748 A.2d 166, 193 (1999) (“An error will be deemed harmless if…the properly
admitted and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect was so insignificant by comparison that the error could not
have contributed to the verdict.”).
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trial court orally gave to the jury. Appellee avers Appellant waived this issue
by failing to lodge a specific objection at trial.
Initially, we note that whether written materials should be allowed to go
out with the jury during deliberations is within the sound discretion of the trial
court. Commonwealth v. Barnett, 50 A.3d 176 (Pa.Super. 2012).
Pennsylvania Rule of Criminal Procedure 646, pertaining to material
permitted in possession of the jury, provides, in relevant part, the following:
(B) The trial judge may permit the members of the jury to have
for use during deliberations written copies of the portion of the
judge’s charge on the elements of the offenses, lesser included
offenses, and any defense upon which the jury has been
instructed.
(1) If the judge permits the jury to have written copies of the
portion of the judge’s charge on the elements of the offenses,
lesser included offenses, and any defense upon which the jury has
been instructed, the judge shall provide that portion of the charge
in its entirety.
Pa.R.Crim.P. 646(B)(1).
During the jury’s deliberations, the following relevant exchange
occurred:
THE COURT: All right. The jury has requested the elements
of the charges in this case. It is at the discretion of the Court to
send them back or not, clean copies. I have clean copies that I
will send back. There was an issue raised by the defense. What
are you requesting?
[DEFENSE COUNSEL]: Your Honor, I—
THE COURT: Are you requesting that I send back 45 pages?
[DEFENSE COUNSEL]: No, that they have all of the
instructions.
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THE COURT: That is denied. I am going to send back the
clean copies of aggravated harassment by prisoner and
institutional vandalism. I will send that back to them. And with
that if we have any other questions, we will address them when
they come up.
N.T., 9/17/19, at 153.
Appellant argues that, since the trial court permitted the jury to have
written copies of the portion of the judge’s charge on the elements of the
offenses, the trial court abused its discretion under Pa.R.Crim.P. 646(B)(1)
when it denied Appellant’s request that the jury be provided with written
copies of the defense of necessity charge.8 However, we agree with Appellee
that Appellant has waived her argument on appeal.
It is well-settled that to preserve an issue for review, a party must make
a timely and specific objection at trial, and this Court “will not consider a claim
on appeal which was not called to the trial court’s attention at a time when
any error committed could have been corrected.” Commonwealth v. Smith,
606 A.2d 939, 942 (Pa.Super. 1992) (citations omitted). See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”). This requirement bars an appellant from raising
“a new and different theory of relief” for the first time on appeal.
Commonwealth v. York,
465 A.2d 1028, 1032 (Pa.Super. 1983).
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8 It is undisputed that the trial court’s oral charge to the jury included an
instruction on the defense of necessity.
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In urging this Court to find Appellant’s issue to be waived, the trial court
reasoned as follows in its Pa.R.A.P. 1925(a) opinion:
[Appellant] specifically cites to th[e] [trial] court’s failure to
provide the jury with the written elements of the defense of
necessity, as allegedly requested at trial. As aforementioned,
[Appellant] did not identify specific elements or defenses sought
to be provided in writing, but rather requested the whole charge.
Therefore, as [her issue regarding written copies of the defense of
necessity] was not specifically raised or requested at trial, this
allegation of error is waived.
Trial Court Opinion, filed 6/22/20, at 4.
We agree with the trial court’s sound reasoning. At trial, in response to
the trial court’s indication that it was granting the jury’s request to use during
deliberations written copies of the judge’s charge on the elements of the
offenses, Appellant requested the jury be provided with “all of the
instructions.” N.T., 9/17/19, at 153. The trial court denied this request.
However, on appeal, apparently recognizing that Pa.R.Crim.P. 646(B)
does not mandate that, if any written instructions are given to the jury, the
entirety of the oral instructions must be given to the jury in written form,
Appellant has altered her argument. She now specifically avers the jury
should have been provided with written copies of the defense of necessity
instruction. However, inasmuch as an issue may not be raised for the first
time on appeal, and this requirement bars an appellant from raising “a new
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and different theory of relief” for the first time on appeal, we conclude
Appellant has waived her issue.9 York, 465 A.2d at 1032.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/21
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9 Appellant suggests in her brief that, in violation of Pa.R.Crim.P. 646(B)(2),
the trial court erred in failing to instruct the jurors as to how to use the written
copies of the charge, which were provided to them. Appellee advocates waiver
of this issue since Appellant neither requested a cautionary instruction at trial
nor raised the specific issue in her court-ordered Pa.R.A.P. 1925(b) statement.
We agree and find this issue to be waived. See Smith, supra;
York, supra;
Pa.R.A.P. 1925(b)(4)(vii).
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