
    COMMONWEALTH of Pennsylvania, Appellee v. Carl H. PARKER, Appellant
    No. 421 MDA 2017
    Superior Court of Pennsylvania.
    Submitted August 21, 2017
    Filed October 24, 2017
    
      Kyle W. Rude, Williamsport, for appellant.
    Erie R. Linhardt, District Attorney, Williamsport, for Commonwealth, appellee.
    BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
   OPINION BY

GANTMAN, P.J.:

Appellant, Carl H. Parker, purports to appeal from the order entered in the Ly-coming County Court of Common Pleas, which denied his pretrial motion in limine for the production of the complainant’s medical, psychological, psychiatric, and therapy records.. For the following reasons, we quash the appeal.

The relevant facts and procedural history of this ease are as follows. The Commonwealth arrested and charged Appellant with numerous sex offenses as a result of allegations that he committed these various offenses against C.P., a minor, between January 1, 2013 and December 31, 2013. At the time of the offenses, C.P. was fifteen and sixteen years old; and Appellant was married to C.P.’s mother. Around the same - time, C.P. was also receiving psychological support therapy. C.P. reported the alleged sexual abuse on January 15, 2015,

On November 10, 2016, Appellant filed a motion in limine, including a motion for production of C.P.’s medical, psychological, psychiatric and therapy’records. The trial court held a hearing on November 18, 2016, on Appellant’s various motions "in limine, including the motion for production.’ The trial court denied Appellant’s motions on February 8, 2017. Appellant filed a notice of appeal on March 8, 2017. No concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) was ordered or filed.

Appellant raises two issues for our. review: ...

WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENSE REQUEST FOR PRODUCTION OF MEDICAL, PSYCHOLOGICAL, PSYCHIATRIC, AND THERAPY RECORDS OF (VICTIM][?]
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT THE MEDICAL, PSYCHOLOGICAL, PSYCHIATRIC, AND THERAPY RECORDS SOUGHT BY [APPELLANT] WERE NOT RELEVANT TO ANY OF THE. ELEMENTS OF THE CRIMES CHARGED[?]

(Appellant’s Brief at 4).

As a prefatory matter, we must determine whether this appeal is properly before us. In Appellant’s response to this Court’s rule to show cause why the appeal should not be quashed, Appellant argues his defense motion in limine for the production of C.P.’s medical, psychological, psychiatric, and therapy records qualifies as a collateral matter; and the order denying that request is immediately reviewable as a collateral order. Specifically, Appellant argues the denial of his motion for production is separate from and collateral to the issue of whether Appellant is guilty of the charged sex offenses. Appellant claims he has a right to favorable evidence and to confront his accuser, which outweighs C.P.’s interest in the non-disclosure of her confidential records. Appellant asserts that without access to the potentially exculpatory evidence contained in C.P.’s records, his defense will be irreparably lost because it rests on C.P.’s credibility, her delay in reporting, and her reason for the delay. Appellant submits an in camera review of C.P.’s records would remove concerns for C.P.’s privilege and privacy, and allow Appellant to prepare a proper defense. Appellant concludes the court’s order denying Appellant’s access to this confidential information is immediately appealable under the collateral order doctrine. We disagree.

Appellate review of any “court order is a jurisdictional question defined by rule or statute.” Commonwealth v. Rosario, 419 Pa.Super. 481, 615 A.2d 740, 742 (1992), affirmed, 538 Pa. 400, 648 A.2d 1172 (1994). This principle applies to appellate review of a pretrial order. Commonwealth v. Jones, 826 A.2d 900, 903 (Pa.Super. 2003) (en banc). A court may consider the issue of jurisdiction sua sponte. Commonwealth v. Grove, 170 A.3d 1127, 2017 PA Super 286 (2017) (citing Commonwealth v. Ivy, 146 A.3d 241, 255 (Pa.Super. 2016)). In evaluating our jurisdiction to allow Appellant’s appeal, we look to other criminal cases involving appeals of pretrial orders. Id.

The, general rule in criminal cases is that a defendant may appeal only from a final judgment of sentence, and an appeal from any prior order or judgment will be quashed. In this Commonwealth, an appeal may only be taken from: 1) a final order or one certified by the trial court as final; 2) an interlocutory order as of right; 3) an interlocutory order by permission; or 4) a collateral order.
A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.
In light of the long-standing rule of American jurisprudence that, except in extraordinary circumstances, an appeal may be taken only from a final order of the court, and in recognition of our responsibility to preserve the sanctity of the appellate process, ... a criminal defendant may not appeal from an order of a suppression court even in the posture of a cross-appeal.

Id. at 255-56 (internal citations omitted).

Rule 313 of the appellate rules defines a collateral order as:

Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313. Rule 313 is jurisdictional in nature. Commonwealth v. Blystone, 632 Pa. 260 269, 119 A.3d 306, 312 (2015). “Thus, if a non-final order satisfies each of the requirements articulated in Pa.R.A.P. 313(b), it is immediately appealable. However, we ‘construe the collateral order doctrine narrowly so as to ‘avoid piecemeal determinations’ and protracted litigation.” Id. at 270, 119 A.3d at 312. “[T]he requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule.” Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 47 (2003). “To that end, each prong of the collateral order doctrine must be clearly present before'an order may be considered collateral.” Id. Concerning whether the issue on appeal directly affects a right that is too important to be denied review, the question “must involve rights deeply rooted in public policy going beyond the particular litigation at hand.’ ” Id.

In the instant case, Appellant fails to satisfy the first and second categories of appeals where the order on appeal is not a final order under Rule 341 or an interlocutory appeal as of right under Rule 311. See Ivy, supra. Regarding the category of interlocutory appeals by permission under Rule 312, the trial court did not certify the order for immediate appeal and Appellant did not file a petition for permission to appeal under Rule 1311. Finally, the order fails to meet the requirements of a collateral order under Rule 313. In this regard, the trial court reasoned:

A ruling on a motion in limine is not a final order for purposes of appeal. The [c]ourt believes that the general rule in criminal cases: that a defendant may appeal only from a final judgment of sentence, and an appeal from any prior order or judgment will be quashed is applicable to the case at bar, and.as such this issue is not reviewable by the Superior Court.
The Superior Court is considering the appeal under Pa.R.A.P. 313 (collateral orders):, however, the [c]ourt believes that the three prongs of Pa.R.A.P. 313 that render an interlocutory order... ap-pealable have not been met.
An interlocutory order is [immediately] appealable if.(l) it is separable from and collateral to the main cause of action: (2) the right involved is too important to be denied review: and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Appellant’s claim fails the third prong. The claim, i.e., that he should be able to submit evidence that the [c]ourt is not admitting, does not evade review after final judgment. Appellant can appeal the denial after trial and will be granted a new trial if appropriate.
If Appellant is ultimately convicted, the [c]ourt’s decision to preclude [d]efense evidence can be reviewed through Appellant’s right to direct appeal, thus, the claim will not [be] lost. [Ivy, supra]. An order is not immediately appealable if it cannot be said “that ‘denial of immediate review would render impossible any review whatsoever of [the] individual’s claim.’ ” Commonwealth v. Reading Grp. Two Props., Inc. 922 A.2d 1029, 1032 (Pa.Cmwlth. 2007) (citing Commonwealth v. Wells, 553 Pa. 424, 719 A.2d 729 (1998)). [Compare] Common wealth v. Minich[, 4 A.3d 1063, 1068 (Pa.Super. 2010)] (review of [trial] court’s order denying the Commonwealth’s Pa.R.E.404(b) motion to preclude introduction of defense evidence would be irreparably lost in the event of an acquittal because “constitutional prohibition against double jeopardy protects against second prosecution for the same offense after an acquittal”). Ivy[, supra] at 256. In Minich, the trial courtf’s order denied the Commonwealth’s motion to preclude and allowed the proposed] defense evidence. Here, the [c]ourt has denied a [d]efense motion to introduce evidence, rather than allow [it]. Should Appellant be found guilty at trial, and it is determined that the [c]ourt abused its discretion in disallowing the admission of evidence Defense seeks to admit, he will have another trial and can introduce ■that evidence. Thus, [Appellant’s] claim is reviewable after a final judgment of sentence, if it should ever' occur. ...

(Trial Court Opinion, dated May 4, 2017, at 1-3) (emphasis in original). We agree with the trial court. Additionally,'we note Appellant’s claim does not involve defense rights deeply rooted in public policy and going beyond the particular litigation at hand. See Ivy, supra. Therefore, Appellant’s claim fails the second and third prongs of the collateral order test. See id.

Further, we observe Appellant’s claim is not separable and collateral to the main cause of action, under the first prong of the collateral order test, because Appellant admittedly wants the ■ confidential documents to use as* exculpatory evidence, to prepare his defense and to impeach C.P. at trial. Appellant alternatively refers to the confidential information as Brady material and as a potential ground to impeach C.P. for her delay or failure to report the alleged abuse. Thus, Appellant’s claim goes directly to the merits of his defense in this case.

Finally, we note independently that the principles enunciated in Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999), allowing interlocutory appeals as collateral orders in special circumstances, do not apply here. The Ben Court held that ah order Compelling the production of arguably privileged information could be deemed immediately appealable under the .collateral order exception to the final order rule. Ben, supra applies in both criminal and civil cases. See, e.g., Commonwealth v. Kennedy, 583 Pa. 208, 876 A.3d 939, 876 A.2d 939 (2005) (applying Ben in criminal context on appeal from order granting disclosure of arguably privileged materials). Furthermore, most cases relying on Ben for an immediate appeal involve trial court orders permitting disclosure of confidential or privileged materials. See, e.g., Commonwealth v. Williams 624 Pa. 405, 86 A.3d 771 (2014) (holding discovery order overruling claims of privilege and requiring disclosure of Commonwealth’s notes concerning trial prosecutor’s interviews, witness preparation sessions, and witness examination outlines was immediately ap-pealable under Ben); Commonwealth v. Harris, 612 Pa. 576, 32 A3d 243 (2011) (concluding court’s order granting Commonwealth’s motion to declare waived defendant’s privilege concerning confidential communications with psychologist and permitting Commonwealth' to hire defendant’s psychologist as expert witness was immediately appealable under Ben). Compare Commonwealth v. Sabula, 46 A.3d 1287 (2012) (concluding order denying defendant’s motion to compel enforcement of pre-arrest agreement between Commonwealth and defendant was not appealable as collateral order under Ben).

Here, the requested documents are indisputably privileged under 42 Pa.C.S.A, § 5944 (declaring as privileged confidential communications to psychiatrists or licensed psychologists) and this appeal relates to the denial of & request for disclosure of privileged information. Yet, Ben, supra has historically- been restricted to-review of discovery orders granting disclosure of arguably privileged information, and not to orders denying- disclosure. of arguably, privileged information. See Williams, supra; Harris, supra; Sebula, supra. The order at issue in the present appeal denied Appellant’s request for disclosure of incontestably privileged material. Lastly, Appellant had the responsibility to justify the application of Ben, supra to his case; but he failed to do so.

Based upon the foregoing, we hold the order presently before us is not immediately appealable. Accordingly, we quash the appeal.

Appeal quashed; case remanded for further proceedings. 
      
      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
     