J-A06038-25
2025 PA Super 62
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANTHONY LUCKEY : No. 640 EDA 2024
Appeal from the Order Entered February 13, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001585-2023
BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E. *
OPINION PER CURIAM: FILED MARCH 14, 2025
The Commonwealth files this interlocutory appeal pursuant to Pa.R.A.P.
311(d)1 from the inexplicable pretrial discovery order entered by the Court of
Common Pleas of Philadelphia County granting the defense request to obtain
the new residential address of a complainant/victim and to conduct the in-
person interview in her home. For the following reasons, we deem the appeal
reviewable, vacate the order, and remand for further proceedings.
Defendant’s preliminary hearing featured the testimony of Complainant,
the 61-year-old aunt of Defendant and the Commonwealth’s main eyewitness,
who related the events of January 7, 2023, that underlie the aggravated
assault, unlawful restraint, firearms prohibited, and related charges filed
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The Commonwealth has certified that the trial court's order terminates or
substantially impairs the prosecution, as required by Pa.R.A.P. 311(d).
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against Defendant. Specifically, Complainant testified that she had been
staying and partying at Defendant’s house for four or five days when he
suddenly announced she had to leave by the next day and tossed her
belongings out onto the front porch. N.T., 2/28/23, at 5, 10. To her plea that
she had nowhere to go, he extended her stay by several days, bluntly telling
her, “I want you out by Saturday” and “You can go outside and get your
belongings.”
Complainant initially replied she was not going outside, N.T. at 6, but
she started for the door to recover her things as Defendant was leaving the
room. N.T. at 6. Defendant said he knew she was going to do that, and then
he asked, “You think I’m playing with you?” N.T. at 6.
Complainant described how Defendant left the room momentarily to
beat his dog for several minutes, N.T. at 6, 15, before returning with a
handgun. N.T. at 13-16. According to her testimony, it was without
provocation that Defendant pointed it at her and fired a shot from about six
feet away from where she was sitting. N.T. at 13-16. Complainant testified
she could feel the force of the bullet pass alongside her ear, N.T. at 7, and she
described how he punched her three times in the chest minutes later when he
heard sirens and accused her of calling the police, which she denied. N.T. at
7-8, 16.
Lieutenant Stephen Haraszkiewicz testified that police arrived in
response to a 911 call reporting someone being held at gunpoint inside the
home. N.T. at 18. According to the lieutenant, the police could hear a female
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from inside repeatedly screaming, “He won’t let me out, he’s got guns in here.”
N.T. at 19.
Police were “banging on the door” and asking that someone open, but
Defendant’s refusal led police to call for the fire department’s battering ram
to open the door, which was fortified with numerous locks. N.T. at 19.
Complainant corroborated that Defendant refused requests to open the door.
N.T. at 8, 9.
Once the fire department enabled police entry, the lieutenant observed
a “distressed, ““visibly upset,” and apparently intoxicated Complainant sitting
on the futon. N.T. at 22.; N.T., 2/13/24, at 11. Police secured Defendant,
the Complainant, and a third man who was present in the home, and they
recovered a shell casing lying in plain view on the floor near the futon. N.T.,
2/28/23, at 8, 14. They did not, however, recover the shell itself, which
Complainant said must have traveled into the kitchen given the direction of
the shot. N.T., 2/13/24, at 11. A subsequent execution of a search warrant
of the home yielded a 12-gauge shotgun, three Remington and 12-gauge
shotgun shells, five live 9mm rounds, one 9mm pistol and one handgun
magazine loaded with two 9mm live rounds. N.T. at 26-27. Also discovered
among the many bullet holes located throughout the interior of the home was
a bullet hole that the Commonwealth posits corresponds with the Victim’s
account of Defendant firing a gunshot near her head as she sat on the futon.
N.T., 11/1/23, at 10-11; N.T. 2/13/24, at 29.
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At a bail motion hearing held on November 1, 2023, the Commonwealth
asked the trial court to either deny bail, impose home confinement, or at most
implement electronic monitoring coupled with neighborhood access only. As
support for this request, the Commonwealth not only recalled the significant
violence Defendant allegedly directed towards Complainant but also updated
the trial court that since the preliminary hearing Complainant was reporting
that many friends and relatives shared by Defendant and her were harassing
her with phone calls imploring her to end her involvement with the case. The
calls were so numerous, the Commonwealth maintained, that Complainant
“had to change her phone number.” N.T., 11/1/23, at 9. The Commonwealth
emphasized that they were now dealing with a main witness who was
“genuinely fearful” of Defendant and does not want her contact information
released. N.T. at 20.
The trial court expressed caution against automatically implicating
Defendant in this attempt to sway Complainant, as it observed, “if we don’t
have any reason to believe that the defendant was involved in that process,
you know, we don’t know – it's possible those relatives have their own
independent motive for making those same entreaties to the complaining
witness.” N.T. at 22-23. Nevertheless, given the sum of evidence before it,
the trial court ordered house arrest with electronic monitoring. N.T. at 28-33.
Three months later, at the hearing of February 13, 2024, Defendant
sought and received a modification to the bail order. In consideration of both
his compliant behavior and the pretrial delay his prosecution was
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experiencing, the court ordered that Defendant continue house arrest but with
a curfew whereby he was he was free to leave his home from 8 a.m. to 6 p.m.,
with the continuation of the “stay-away” order and the no-contact order
currently in place. N.T., 2/13/24, at 58-59.
Defense counsel then broached the subject of his discovery motion in
which he requested Complainant’s contact information. N.T. at 22. The trial
court assumed the request would be limited to Complainant’s phone number,
but defense counsel clarified he also sought her residential address, which he
would not share with Defendant. N.T. at 23.2 He later confirmed that the
“nub” of his request was to reach out and talk with Complainant. N.T. at 61. 3
____________________________________________
2 To this end, defense counsel indicated he preferred if the trial court would
issue a protective order prohibiting him from giving any information about
Complainant’s whereabouts or contact information to Defendant. N.T.,
2/13/24, at 55.
3 Defense counsel’s affirmation that an interview with Complainant was the
“nub” of his discovery request led to the Commonwealth’s apparent
misunderstanding regarding the scope of his requested “investigation,” to use
his word, of Complainant. “Nub” means the gist, crux, or essence of
something, and it appears that is precisely how defense counsel used it and
the trial court understood it. The Commonwealth, however, appears to have
misconstrued it to mean the interview was just the beginning of a defense
investigation of greater scope. We find that neither the definition of the word
itself nor the context of the discussion in which defense counsel used the word
support the Commonwealth’s interpretation. Regardless of the argument that
ensued over the Commonwealth’s concern with the scope of defense counsel’s
proposed discovery visit with Complainant, the trial court properly concluded
that defense counsel’s reference to his “investigation” of Complainant was
synonymous with the “interview” that both parties agreed shall and must take
place.
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The Commonwealth opposed the motion seeking Complainant’s new
residential address, responding that reasons justifying a heightened concern
for Complainant’s safety remained, even if the court were prepared to relax
its bail order. More specifically, the prosecutor argued that a fearful
Complainant would not comply with a request for her contact information.
“She doesn’t want me to give out her number or her location. But I believe I
could arrange [an in-person meeting], if she felt secured in the location and
it was just defense counsel. I think I could do that.” N.T. at 62-63.
The trial court already had advised defense counsel that the prosecutor
“offered that she could arrange for you two [counsel and complainant] to have
a face-to-face meeting, or she would attempt to[.]” N.T. at 62. The prosecutor
essentially agreed, stating “I would have to talk to the complainant about that,
but I think we can arrange for defense counsel to sit down with complainant
and conduct a face-to-face interview of her. N.T. at 62.
The trial court turned to defense counsel and asked, “Why wouldn’t that
meet your needs, Defense?”, N.T. at 63, but Defense Counsel balked at the
compromise offer of meeting with Complainant in a secure, neutral location,
stating incoherently:
Defense Counsel: I do not want to get into – I don’t want
to think out loud – so I spent years as an investigator for law
school. I spent years talking to complainants essentially in cases
– it was in a different state and ---.
N.T. at 63.
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The prosecutor replied she was doing “everything in my power to set
this up, so defense counsel can prepare his case and meet with the witness.”
N.T. 64. She acknowledged the trial court’s reference to the rules of criminal
procedure that give it discretion to subject certain information, such as witness
names and addresses, to disclosure if it is material to the preparation of the
defense and the request is reasonable. Nevertheless, her position was that
providing defense counsel with the intended benefit of such information,
namely, enabling him to conduct a face-to-face interview with the witness at
a neutral location, obviated the need to disclose Complainant’s new address:
Prosecutor: I am willing to set up a meeting unless the
complaining witness completely refuses in which case, if Your
Honor wants me to provide some proof that she’s really refusing,
I can do that, too, but I believe I can set up a meeting between
the witness and defense counsel, for him to prepare for trial, which
is the only right he has.
N.T. at 64.
At the close of argument, the trial court granted defense counsel’s
request for discretionary discovery of the name and address of Complainant,
pursuant to Rule 573, with the restriction that counsel is not to share the
address information with Defendant or anyone outside of the defense team.
N.T. at 65.
The Commonwealth filed a timely motion for reconsideration
emphasizing that the order granting defense counsel’s oral motion for
discovery of Complainant’s address erroneously ignored her “unwavering
directive to keep her address private because she fears the defendant” based
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on their past relationship, in which “defendant had shot at the victim while
unprovoked and prohibited from owning firearms” and also “had engaged in
criminal activity involving guns and drugs” in the witness/victim’s presence.
Cmwlth Motion for Reconsideration, 2/23/24, at 2. The trial court denied the
Commonwealth’s motion. This interlocutory appeal followed.
The Commonwealth presents the following question for this Court’s
consideration:
Did the trial court abuse its discretion in ordering the
Commonwealth to disclose M.B.’s current address to the defense:
(1) without requiring the defendant to explain how the address
would materially aid his defense; (2) with no regard for
maintaining M.B.’s safety and security; (3) while ignoring less
intrusive means of facilitating an interview between M.B. and
defense counsel knowing that, if M.B.’s address were disclosed,
M.B. would refuse to cooperate and the Commonwealth’s
prosecution would c[e]ase; and (4) in contravention of
Pennsylvania’s crime victims’ rights act, 18 Pa.C.S. § 11.211?
Opening Brief of Commonwealth, at 5.
We first address whether the discovery order in question is appealable.
The trial court indicates it is “at a loss to understand how a discovery ruling
requiring the Commonwealth to disclose a witness’ address constitutes an
order that will ‘terminate or substantially handicap the prosecution’ such as to
permit an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(d)[,]” as
the order directed the information be provided only to defense counsel and
not to defendant.
On whether certification is proper under Rule 311(d), we have observed:
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Pennsylvania Rule of Appellate Procedure 311(d) provides that
“[i]n a criminal case, under the circumstances provided by law,
the Commonwealth may take an 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 appealable 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)).
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).
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Commonwealth v. McKnight, 305 A.3d 582, 586-87 (Pa. Super. 2023).
Consistent with this jurisprudence, we find the trial court’s discovery
order has the practical effect of terminating the prosecution, as the
Commonwealth certifies it does. The Commonwealth had advised the trial
court that Complainant, the only eyewitness to the alleged acts of domestic
violence underlying the criminal charges against Defendant, would refuse to
cooperate in the prosecution if she were required to divulge her new
residential address to the defense. Nevertheless, after a full hearing on
defense counsel’s discovery motion seeking Complainant’s address and
contact information—presumptively to enable him to arrange an in-person
interview with her on terms acceptable to the defense—the trial court declined
the Commonwealth’s suggestions for a neutral site, granted defense counsel’s
motion, and directed that the interview take place at the Complainant’s
residence—a decision that by every indication offered during the hearing
would grind the prosecution of this case to a halt. When viewed in light of our
jurisprudence, the court’s order has the practical effect of excluding evidence
necessary to the Commonwealth’s prosecution of its case. Therefore, we find
certification is proper under Rule 311(d).
What remains to be decided is whether the trial court’s pretrial order
granting, over the Commonwealth’s objection, defense counsel’s motion for
discovery of Complainant’s new residential address complied with the
requirements of Pa.R.Crim.P. 573(B)(2), Discretionary With the Court, which
confers under subsection (a)(1) discretionary power in the courts to order the
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Commonwealth to supply the defense with names and addresses of
prospective witnesses if they are material to the preparation of the defense
and the request is reasonable:
(a) In all court cases, except as otherwise provided in Rules 230
(Disclosure of Testimony Before Investigating Grand Jury) and
556.10 (Secrecy; Disclosure), if the defendant files a motion for
pretrial discovery, the court may order the Commonwealth to
allow the defendant's attorney to inspect and copy or photograph
any of the following requested items, upon a showing that they
are material to the preparation of the defense, and that the
request is reasonable:
(i) the names and addresses of eyewitnesses[]
Pa. R. Crim. P. 573(B)(2)(a)(i). Regarding the burden of proving the
requested information is material and reasonable, a defendant must show a
reasonable probability that the information gained from the discovery would
lead to evidence that would exonerate him. Commonwealth v. Garcia, 72
A.3d 681, 684, 685 (Pa. Super. 2013). More than a mere assertion that the
information disclosed might be helpful is necessary.
Id.
The trial court opines that it based its decision to grant the defense
discovery motion on its finding of fact that in the time since the alleged crime,
including the most recent months in which defendant was released on bail,
there was no proof that either he or anyone acting at his behest had contacted
or attempted to contact Complainant. On this record, the trial court concludes
the Commonwealth had not demonstrated an ongoing danger to Complainant
and had offered nothing to oppose defense counsel’s motion “other than the
bald assertions that the complainant is fearful.”
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The Commonwealth asks whether the trial court abused the discretion
afforded under Rule 573 when it issued its order without any indication she
was unwilling to attend a neutral interview site. The Commonwealth argues
that the requirements placed on Complainant were unreasonable and, thus,
non-conforming with the requirements of Rule 573 under the facts.
A ”genuinely fearful” Complainant had taken great precautions after her
alleged assault to keep confidential her new address from family and
associates of defendant out of fear of his reprisals. She changed her phone
number in the wake of harassing phone calls and she had given fair notice
that she would refuse to cooperate in the prosecution if she were required to
reveal her new residential address as part of the process.
The record suggests the parties ostensibly tried to agree on a suitable
interview site for defense counsel and Complainant. Defense counsel refused
the Commonwealth’s offer of the District Attorney’s office, and the
Commonwealth contested defense counsel’s request for Complainant’s
address and, by implication, any proposal that the interview occur there.
There is no trial court suggestion or directive that the parties strive to
agree on an interview site that would accommodate the interests of both the
alleged victim of domestic gun violence and the defendant, whose defense
team reasonably sought to conduct pre-trial discovery of Complainant in a
setting without possible adverse influences.
To the contrary, despite the Commonwealth’s endorsement of a neutral
site and admonition against divulging the Complainant’s new address, the trial
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court ordered that the elderly complainant supply defense counsel with her
address and admit him into her home to conduct the interview.
On this record, we find the trial court’s discovery order requiring a
complainant, after being assaulted and thus terrified, to disclose her new
residential address to defense counsel failed to meet the requirements of Rule
573. Neither defense counsel nor the trial court has shown how the disclosure
was both material to a proper defense and reasonable where circumstances
warranted serious concerns of needlessly intimidating this sole witness whose
availability for a neutral site interview was otherwise assured by the
Commonwealth.
The trial court’s stated aim of ensuring a defense interview of
Complainant in a setting free from potential observation or influence by the
Commonwealth is misplaced and did not depend upon the disclosure of her
residential address. The interview was placed in jeopardy by the trial court’s
order in that the trial court was notified Complainant would withdraw from the
prosecution rather than forgoing her personal security by providing her home
address to the very person who allegedly assaulted her.
Under the circumstances, it was at the very least manifestly
unreasonable, and entirely ridiculous, for the trial court to order the
Commonwealth to divulge the Complainant’s address to the defense.
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
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Date: 3/14/2025
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