J-A18010-23
2023 PA Super 211
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHANNON MCKNIGHT : No. 66 WDA 2023
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
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
OPINION BY BENDER, P.J.E.: FILED: OCTOBER 23, 2023
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
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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 the requested particulars to
improperly seek the Commonwealth’s evidence. On January 9, 2023, Appellee
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1 The Information identifies the 16-month-old toddler as “B.M.” In Appellee’s
Request, she identifies the toddler as “K.M.,” and notes that the Information
mistakenly refers to the 16-month-old as B.M. See Request, 12/22/22, at 1
n. 1 (unnumbered single page). We will herein refer to the 16-month-old as
K.M. for purposes of clarity.
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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 our 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?
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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
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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.
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 Cella,
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 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
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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,
836 A.2d 871 (Pa. 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)).2
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,
278 A.3d 885, 889 (Pa. 2022) (citation omitted). “This category
covers all types of orders resulting in the suppression or exclusion of
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2Pursuant to Pa.R.A.P. 126(b), non-precedential decisions of the Superior
Court filed after May 1, 2019, may be cited for their persuasive value.
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Commonwealth evidence[,]” and also “includes orders that have ‘the practical
effect’ of suppressing or excluding evidence.” Id. (citing Commonwealth v.
Matis,
710 A.2d 12, 18-19 (Pa. 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,
880 A.2d 505, 513 (Pa. 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,
599
A.2d 681 (Pa. Super. 1991)).
In Pownall, our Supreme Court addressed the appealability of “a new
type of order” that did “not concern the suppression of evidence or fit neatly
within any of the other discrete categories that we have held are appealable
as of right by the Commonwealth….” Pownall, 278 A.3d at 900. The order
at issue there was “one denying a pretrial Commonwealth motion in limine
seeking to preclude the trial court’s use of a suggested standard jury
instruction” based on a “facial attack to the statute upon which that instruction
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is based[].” Id. Relying on Rule 311(d)’s “plain language[,]” the Court
ultimately determined that the order did not terminate or substantially
handicap the Commonwealth’s prosecution and, thus, the interlocutory appeal
was not permitted. Id. In so ruling, the Court relied on its earlier decision in
Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005). There,
the Commonwealth took an interlocutory appeal from “a pretrial
order granting [the defendant’s] request to compel the minor
complainant to submit to a psychological exam for the purpose of
aiding the trial court in determining whether [he] was competent
to testify.” [Shearer,] 882 A.2d at 464. The Commonwealth
argued its appeal was proper under Rule 311(d) on the ground its
case would be “over if the trauma inflicted on the child results in
his being unwilling or unable to cooperate or testify, or otherwise
results in or contributes to a defense verdict.” Id. at 468 (internal
quotations, brackets, and citation omitted). We disagreed.
Notably, we flatly rejected the Commonwealth’s “assertion that it
should always be permitted to appeal any pretrial order that has
the potential to affect its ability to meet its burden of proof.” Id.
at 467. In our view, the claimed handicap was founded on nothing
more than the Commonwealth’s “speculation regarding the
potential effects of the order[.]” Id. at 468. That, we held,
“simply does not suffice to establish” an order’s appealability
under Rule 311(d). Id.
Pownall, 278 A.3d at 901.
The Pownall Court found that the Commonwealth’s appeal “faces the
same problem” addressed in Shearer. Id. Namely, while the Commonwealth
contended that the court’s order would force it “to disprove multiple
justification defenses,” the Court concluded that it was “impossible to know in
this pretrial posture whether the [Commonwealth would] actually be forced to
disprove anything.” Id. “That could only theoretically occur if, at trial,”
certain evidence was produced that would support the at-issue jury
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instruction, and the court then exercised its discretion to issue that charge
“exactly as written.” Id. The Pownall Court characterized the
Commonwealth’s “asserted substantial handicap” as being “constructed on
layer after layer of speculation and ‘what ifs.’” Id. It held that “Rule 311(d)
requires more[,]” namely, that “the order appealed from [has] a tangible or
practical effect on the Commonwealth’s actual ability to prosecute its case.”
Id. at 901-02.
Here, we conclude that the order from which the Commonwealth
appeals has a practical and tangible impact on its ability to prosecute
Appellee’s case. Namely, the order requires the Commonwealth to either
provide information that it believes will improperly “reveal [its] theory of the
case” and have “the effect of constraining the Commonwealth’s evidence[,]”
or refuse to comply with the order and risk that the court will preclude it from
prosecuting Appellee for first-degree murder, or seeking the death penalty
against her, by prohibiting evidence that Appellee acted with the specific intent
to kill. Commonwealth’s Brief at 15. Unlike the speculative argument in
Pownall, here, the Commonwealth has offered concrete reasons that it
believes its prosecution will be hampered whether it complies with the court’s
order or refuses to do so. Accordingly, we accept the Commonwealth’s
certification under Rule 311(d) and proceed to the merits of the issues it raises
herein.
The Commonwealth’s first three issues are interrelated and, thus, we
will address them together. The Commonwealth contends that the court erred
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by requiring it to answer Appellee’s Request, as it “is putting the
Commonwealth in the precarious position of trying to figure out what is an
appropriate response” to the Request, while at the same time knowing “that
if the Commonwealth does not meet this undefinable standard that it will be
precluded from seeking first-degree murder or the death penalty.”
Commonwealth’s Brief at 16. Additionally, the Commonwealth insists that, “if
it does in some way file an acceptable response with the trial court, then it
would be limited in the presentation of its case.” Id. at 17. Specifically, the
Commonwealth contends that “being required to present [its] theory of the
case in an answer to a bill of particulars will constrain the Commonwealth in
its presentation of evidence.” Id. at 18. It elaborates that,
[t]his case is largely based on circumstantial evidence and there
are many ways in which the child could have been poisoned by
her parents with fentanyl (i.e., inhalation, ingestion, etc.). The
case law is very clear that the Commonwealth is restricted to
proving what it has set forth in the bill of particulars.
Com[monwealth] v. Simione, 291 A.2d 764 … [(Pa.] 1972[)].
The [Commonwealth] should not be limited at this point to
choosing only one possible way in which the child was poisoned
with fentanyl.
Id.
The Commonwealth further avers that Appellee “is requesting things
within the bill of particulars that are not a proper subject for a bill of particulars
and are in the nature of a discovery request.” Id. at 17. The Commonwealth
stresses that “[a] bill of particulars is not a place where the Commonwealth
clarifies [its] evidence.” Id. Instead, “[t]he function of [a] bill of particulars
is to give notice to the accused of the offense charged in order to permit him
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to prepare a defense, avoid surprise, and be placed on notice as to any
restrictions in the Commonwealth’s proof.” Id. at 16 (citing Commonwealth
v. Delbridge, 771 A.2d 1, 4 (Pa. Super. 2001)). Instantly, the
Commonwealth contends that,
[t]he facts are clear that … Appellee and her co-defendant were in
a small room with over … 100 stamp bags of fentanyl mixed with
horse tranquilizer and drug paraphernalia everywhere. In that
small room were the now deceased infant, and a 16-month-old
sibling who both tested positive for fentanyl and horse
tranquilizer. There is no surprise here or need for clarification of
evidence.
Id. at 18-19.
In regard to Appellee’s claim that she “cannot prepare a proper defense
because [she] does not know the actus reus[,]” the Commonwealth points out
that “[t]he wrongful deed that composes the crime is the poisoning of the
infant child and their 16-month-old sibling with fentanyl and horse
tranquilizer.” Id. at 20-21. The Commonwealth insists that this fact is
“contained within the discovery that has been provided” to Appellee, and that
the trial court’s order improperly requires the Commonwealth to divulge its
theory of the case, despite that “no rule of criminal procedure … requires the
Commonwealth to put forth [its] trial strategy and/or theory.”
Id. at 21, 22.
In assessing the Commonwealth’s arguments, we are mindful that “[w]e
review a trial court’s [Pa.R.Crim.P.] 572 decision for an abuse of discretion.”
Commonwealth v. Libengood, 152 A.3d 1057, 1059 (Pa. Super. 2016)
(citation omitted). Rule 572 states:
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(A) A request for a bill of particulars shall be served in writing by
the defendant upon the attorney for the Commonwealth within 7
days following arraignment. The request shall promptly be filed
and served as provided in Rule 576.
(B) The request shall set forth the specific particulars sought by
the defendant, and the reasons why the particulars are requested.
(C) Upon failure or refusal of the attorney for the Commonwealth
to furnish a bill of particulars after service of a request, the
defendant may make written motion for relief to the court within
7 days after such failure or refusal. If further particulars are
desired after an original bill of particulars has been furnished, a
motion therefor may be made to the court within 5 days after the
original bill is furnished.
(D) When a motion for relief is made, the court may make such
order as it deems necessary in the interests of justice.
Pa.R.Crim.P. 572.
Here, in explaining its decision to order the Commonwealth to respond
to Appellee’s Request, the trial court states:
As previously noted by the [c]ourt, a bill of particulars functions
to provide a defendant with notice of the charges contained within
the bill of information so as to allow her to prepare for trial,
prepare a defense, and to prevent surprise during the
proceedings. Additionally, the comment to Pa.R.Crim.P 572
(governing bill of particulars) states that “[t]he traditional function
of a bill of particulars is to clarify the pleadings and to limit the
evidence which can be offered to support the information.”
Pa.R.Crim.P. 572 (Comment) (emphasis added). … Moreover,
“when a motion for relief is made, the [c]ourt may make such
order as it deems necessary in the interests of justice.”
Pa.R.Crim.P. 572(D) (emphasis added).
Turning to the matter sub judice, the [c]ourt’s decision to grant
Appellee’s motion for a bill of particulars does not amount to an
abuse of its discretion and is necessary to ensure that the interest
of justice are protected. As the [c]ourt has discussed throughout
its opinion, Appellee, in her request for a bill of particulars,
requested information regarding the manner in which the victims
in this matter were allegedly poisoned. While a bill of particulars
is not to be directed at the Commonwealth’s evidence and utilized
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as a substitute for discovery, Appellee’s request did no such thing.
Commonwealth v. Mercado, 649 A.2d 946, 959 (Pa. Super.
1994). Rather, Appellee’s request for a bill of particulars merely
sought clarification as to information that had already been
supplied by [the Commonwealth], that is, that the victims in this
matter had allegedly been poisoned. Such a request for
clarification evidently fits directly within the purposes for which a
bill of particulars is sought. See Pa.R.Crim.P. 572 (Comment).
Furthermore, the [c]ourt fails to see how Appellee would
adequately be able to prepare a defense for trial and be fully
apprised of the charges against her without the requested
clarification. More specifically, given the nature of the charges
and the fact that [the Commonwealth] is pursuing the death
penalty in this matter, clarification as to the manner in which the
victims were allegedly poisoned is imperative to Appellee’s ability
to obtain the necessary and proper expert witnesses, prepare a
comprehensive defensive strategy, and avoid surprise during the
trial. Absent said clarification, Appellee would be placed in a
position in which she would have to obtain various experts to
account for the multitude of ways in which the victims could have
been allegedly poisoned. Moreover, Appellee would also be
required to craft multiple defensive strategies as to the numerous
ways in which the victims could have been allegedly poisoned, all
while preparing for the varying evidence that could be introduced.2
To expect Appellee to be able to meet such a lofty burden is
unrealistic, contrary to the interests of justice, and precisely what
a bill of particulars seeks to avoid. See [Commonwealth v.]
Bartman, 367 A.2d [1121,] 1127 [(Pa. Super. 1976)]; See also
Pa.R.Crim.P. 572(D); Pa.R.Crim.P. 572 (Comment). Accordingly,
for the aforementioned reasons, this [c]ourt did not abuse its
discretion when it granted Appellee’s “Motion for Bill of Particulars
to Compel District Attorney to Respond.”
2 Without the requested bill of particulars, Appellee would
be required to engage in endless guesswork regarding the
actus reus elements of the charged offenses and the
accompanying evidence, inevitably resulting in surprise
during the trial. Given that [the Commonwealth] is pursuing
the death penalty in this matter, requiring Appellee to
endure such surprise and preventing her from being unable
to formulate and mount the proper defensive strategy
blatantly runs afoul of the interests of justice.
TCO at 8-9.
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Given the court’s discussion, we discern no abuse of discretion in its
decision to grant Appellee’s Request. Appellee seeks clarification of the
pleadings in this case, which is not improper. Moreover, we disagree with the
Commonwealth’s assertion that Appellee is attempting to constrain it in its
presentation of evidence by forcing it to choose one theory of how the children
were poisoned. Indeed, in response to the Commonwealth’s argument that
“[t]his case is largely based on circumstantial evidence and there are many
ways in which the child could have been poisoned by her parents with fentanyl
(i.e.[,] inhalation, ingestion, etc.)[,]” Appellee states: “If that is the extent of
the allegations from the Commonwealth, then that should be the answer to
the request for a bill of particulars.” Appellee’s Brief at 13 (quoting
Commonwealth’s Brief at 18). She continues:
At least then, [Appellee] would know that the prosecutor does not
know exactly how the fentanyl got into the children’s systems and
could prepare a defense based on that premise. One of the
functions of the bill of particulars is for the defense to be placed
on notice of any restrictions upon the Commonwealth’s proof. If
there is something more particular that the Commonwealth
intends to allege, however, then that should be shared with
[Appellee] in the bill of particulars because it is an essential
element of the offenses in question. It certainly should not be
shared for the first time at trial. Appellee genuinely wishes to
avoid surprise and prepare a defense against the allegations that
will be made against her.
Id. at 13-14.
We agree with Appellee. She is seeking clarification of the pleadings, in
which the Commonwealth alleged that she poisoned the victims by
‘introducing’ illegal drugs into their systems. Appellee’s request for further
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explanation of how she purportedly introduced such substances is not
improper. Appellee’s preparation of her defense will differ significantly if the
Commonwealth is alleging a specific method of poisoning, or contending that
she poisoned the children in some manner that is unable to be determined.
We reiterate that the trial court has “broad discretion to ‘make such order as
it deems necessary in the interests of justice’ when a defendant files a motion
to compel the Commonwealth to file a bill of particulars.” Commonwealth
v. Champney, 832 A.2d 403, 412 (Pa. 2003). Thus, we conclude that the
court did not abuse its discretion in granting Appellee’s Request seeking
clarification of the Commonwealth’s pleadings.
In the Commonwealth’s fourth and final issue, it contends that the trial
court erred in ordering that its failure to provide an adequate response to
Appellee’s Request “may result in a prohibition against alleging specific intent
to kill and the death penalty.” Order, 1/12/23, at 1 (single page). According
to the Commonwealth, the “court’s rulings are based on the idea that this is
a death penalty case and therefore the Commonwealth has a heightened duty
or burden of proof.” Commonwealth’s Brief at 23. The Commonwealth insists
that “[t]he Rules of Criminal Procedure do not change evidentiary rules such
as this just because the Commonwealth has sought the [d]eath [p]enalty.”
Id. It then stresses that the trial court has “no authority to examine the
methods employed by the prosecutor in making the determination of whether
to proceed with a murder prosecution as a capital case,” and claims that here,
“[t]he trial court’s prohibition of the death penalty (actual or proposed) for
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failure to respond appropriately” to Appellee’s Request “is a clear violation of
the separation of powers.” Id. at 25. The Commonwealth further contends
that the court’s granting Appellee’s Request “is motivated whole or in part
based on the [c]ourt’s personal bias against the Commonwealth in seeking
the [d]eath [p]enalty.” Id. As evidence of the court’s purported bias, the
Commonwealth cites questions asked by the court during a hearing in
Appellee’s co-defendant’s case on January 12, 2023. See id. at 25-26.
Initially, the Commonwealth does not point to where in the record it
raised its claim of bias before the trial court, and it did not specifically assert
that issue in its Rule 1925(b) statement. Thus, the trial court did not address
this allegation of bias in its opinion, and we will not review it for the first time
on appeal, as it is waived.3 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.”);
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); Pa.R.A.P 1925(b) Order, 1/17/23, at 1 (warning that “[a]ny issue
not properly included in the statement timely filed and served on the trial
judge shall be deemed waived”) (unnumbered page); see also Greater Erie
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3 We also point out that the January 12, 2023 transcript of the hearing in
Appellee’s co-defendant’s case is not included the certified record before this
Court. Thus, we would not be permitted to consider it in assessing the
Commonwealth’s allegations of trial court bias, even had that claim been
properly preserved. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006) (“Simply put, if a document is not in the certified record, the
Superior Court may not consider it.”) (citation omitted).
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Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.
Super. 2014) (en banc) (“[I]n determining whether an appellant has waived
his issues on appeal based on non-compliance with [Rule] 1925, it is the trial
court’s order that triggers an appellant’s obligation[. T]herefore, we look first
to the language of that order.”) (citations omitted; some brackets added).
We are also unconvinced by the Commonwealth’s argument that the
court abused its discretion by ordering that it may be prohibited from alleging
specific intent to kill and pursuing the death penalty if it fails to adequately
respond to Appellee’s Request. In rejecting this claim, the trial court
explained:
Allowing [the Commonwealth] to continue to pursue the ultimate
punishment in a case where the defendant has not been fully
apprised of the charges against her, will be unable to adequately
prepare for trial, and ultimately would not be able to mount an
effective and comprehensive defense offends even the most basic
interests of justice. Thus, to ensure that the interests of justice
are protected to the greatest degree possible in this matter, the
[c]ourt, as empowered by Rule 572(D), deemed it necessary to
order that [the Commonwealth] may be prohibited from
continuing to pursue the death penalty in this matter if it fails to
provide Appellee with the requested bill of particulars. See
Pa.R.Crim.P. 572(D). As such, the [c]ourt did not err nor abuse
its discretion when it ordered that [the Commonwealth] may be
prohibited from alleging a specific intent to kill and from pursuing
the death penalty in this matter if it failed to furnish Appellee’s
requested bill of particulars.
TCO at 10.
Again, the trial court possessed broad discretion to fashion its order
granting Appellee’s Request as it believed necessary to serve the interests of
justice. For the reasons set forth supra, we agree with the court that
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Appellee’s seeking clarification of the Commonwealth’s allegation of poisoning
is permissible, in the interests of justice, so that she may effectively prepare
her defense and avoid surprise at trial. Thus, there is no basis for the
Commonwealth to refuse to comply with the court’s order to provide the bill
of particulars and, at this juncture, the court is not precluding it from pursuing
the death penalty. Thus, the Commonwealth has failed to convince us that
the court abused its discretion in fashioning its order.
Order affirmed.
Date: 10/23/2023
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