MOTION TO QUASH SUBPOENA

Michelle Swartswelder (“Movant”), through her undersigned counsel, moves the Court as follows:

1. The Clerk of Courts of Lebanon County, at the request of the District Attorney of Lebanon
County, has issued a subpoena directed to Movant in Commonwealth v. Derek Yeager, filed in
the Criminal Division of this Court at Docket No. CP-38-CR-551-2010 (“the subpoena”). A
true copy of the subpoena is attached hereto as Exhibit “A”.
2. Movant, as the subpoenaed witness, has standing to bring this motion.
3. The subpoena was served upon Movant by U.S. 1 Class mail posted on July 27, 2010, and
st

delivered on the afternoon of Friday, July 30, 2010. See Exhibit “A”.
4. The subpoena orders Movant to appear at “the Lebanon County District Attorney’s Office,
400 S. 8 Street, Municipal Building, Lebanon, PA. on Monday, the 2 day of August, 2010, at
th nd

8:30 a.m., to testify on behalf of the Commonwealth, in the above case, and remain until
excused.”
5. The subpoena further states that, in lieu of appearing at the DA’s office at 8:30 a.m. on
Monday, August 2, 2010, “If you call the answering machine at (717) 273-8846 and leave your
name, address, home and work phone numbers, Defendant’s name and the case Action number,
YOU NEED NOT REPORT unless called by the District Attorney’s Office. You must,
however, remain available at all times throughout the week until excused. If you fail to provide
us with the requested information, you must appear at the District Attorney’s Office at the time
listed above. ” (Underline and upper case original, italics supplied).

THE COURT CANNOT ISSUE A SUBPOENA COMPELLING A WITNESS TO APPEAR

BEFORE, OR COMMUNICATE WITH, THE DISTRICT ATTORNEY

6. Pa.R.Crim.P. 107 provides: “A subpoena in a criminal case shall order the witness named
to appear before the court at the date, time, and place specified ... ” (Emphasis supplied).
7. 42 Pa.C.S. Section 5905 provides that the court has power to issue subpoenas to witnesses
to appear “before the court or any appointive judicial officer”.
8. The District Attorney is not an arm of the Court, nor an appointive judicial officer, but
rather a separate and distinct executive official.
9. There is no statute or rule of court permitting a witness to be subpoenaed to the District
Attorney’s office.
10. Neither the District Attorney, the Clerk of Courts, nor this Court have the
power to issue a trial subpoena ordering a witness, before or during trial, to appear at the
District Attorney’s office or to contact the Districts Attorney’s Office.
THE DISTRICT ATTORNEY HAS NO POWER TO ISSUE SUBPOENAES
11. A district attorney himself has no common law power of subpoena. The power
of subpoena, once exclusively a judicial power, may now be granted to non-judicial bodies,
commissions, agencies or officials by statute, but the power and the extent of the power is to be
determined in each case by the express statutory grant. Commonwealth ex rel. Margiotti v.
Orsini, 368 Pa. 259, __ A.2d __ (1951).
12. There is no statute that permits someone to be subpoenaed by the District
Attorney.
13. While Movant can find no Pennsylvania state court decision, the United States
District Court for the 3 Circuit has disapproved “office subpoenaes” issued by prosecutors.
rd

United States v DiGilio, 538 F.2d 972 (3d Cir 1976); See, also, Durbin v. United States, 221
F.2d 520 (D.C.Cir. 1954).
 14. The subpoena clearly and expressly misrepresents Movant’s obligation to
appear and testify.
15. By its very nature, a subpoena is a coercive device.
16. The issuance of the subpoena to Movant in this action constitutes an abuse of
process.
WHEREFORE, Movant respectfully asks the Court to quash the subpoena issued in this action.