Com. v. Tatum, P. ( 2018 )

J-S82007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PIERRE LAVON TATUM,
Appellant No. 1708 WDA 2016
Appeal from the Judgment of Sentence Entered October 13, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014257-2015
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 06, 2018
Appellant, Pierre Lavon Tatum, appeals from the judgment of sentence
of time served (13 months’ and 23 days’ incarceration), and a concurrent
term of 6 years’ probation, imposed following his conviction for drug
offenses and related crimes. Appellant challenges the sufficiency of the
evidence. He also contests the trial court’s decision to admit a spreadsheet
containing a summary of seized text messages, which the prosecution
provided to the defense on the night prior to the first day of trial. After
careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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On October 4, 2016, prior to the commencement of the
non-jury trial, a Suppression Hearing was held on the matter of
whether Officer Modena made a valid vehicle stop on August 22,
2015. In opposition to the Suppression Motion, the
Commonwealth called Officer Modena to testify.
Officer Modena has been a City of Pittsburgh Police Officer
since January of 2005 and he has been assigned to Zone 2, the
Hill District. Officer Modena characterized Zone 2, especially the
Hill District, as a high crime area with drugs, shootings, drug
dealing and drug using. On the day in question, August 22,
2015, Officer Modena was working the p.m. shift. At
approximately 4:30pm that day, he observed a gray Jeep
Cherokee in the area of Bedford Avenue in the Hill District.
Specifically, the officer described it as the Bedford-Chauncey
Projects, a high crime area with lots of drugs, shootings and
firearm arrests.
On August 22, 2015, Officer Modena observed a white
female driver in the Jeep and because of the high crime area, he
attempted to conduct surveillance on the car. After
approximately 10-15 minutes, the vehicle pulled out and Officer
Modena was able to catch up to the vehicle and follow it down
Liberty Avenue and 20th Street, where he conducted a traffic
stop. Officer Modena explained the reason he conducted the
traffic stop was due to the fact the vehicle had a dark gray
smoke-covered plate making it hard to read the registration
plate. After the vehicle stopped, Officer Modena approached the
vehicle and asked the driver and two passengers for their
licenses or identification. He then checked the licenses. The
driver of the vehicle, Ms. Patterson, came back with a suspended
license. The passengers were identified as Mr. Forsythe (front
seat passenger) and [Appellant] (rear right side passenger) and
they were either non-licensed or suspended. Since none of the
three occupants had a valid driver's license, the officer called for
a tow truck as standard policy.
Officer Modena re-approached the vehicle and asked Ms.
Patterson to exit the vehicle. He informed her that she was
going to be cited for the obscured plate and suspended license.
He then approached the passengers and asked them if they had
any weapons and they advised him they did not. The officer
then asked for consent to do a pat down check and both agreed.
There were negative results for weapons and the two passengers
were moved to the rear of the vehicle.
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Officer Modena then asked all the occupants if they needed
anything out of the car: Ms. Patterson requested her purse and
phone and Mr. Forsythe and [Appellant] retrieved their phones.
The officer then proceeded to do an inventory to account for …
valuables in the car as part of the tow policy. On the back
passenger side where [Appellant] was seated the officer found
what he believed to be a brick wrapper for packaging heroin, but
no narcotics were in the wrapper. Officer Modena next found
under the driver's seat a clear baggy with numerous bundles of
heroin. He stated he believed it was heroin based on his years
of training and experience. The drugs and the brick wrapper
were seized for evidentiary purposes.
...
Immediately following the Suppression Hearing, the non-
jury trial commenced. The Commonwealth called Officer Jordan
Loscar to testify on its behalf. Officer Loscar has been employed
with the City of Pittsburgh Police since March 17, 2014. On
August 22, 2015, he was asked to assist Officer Modena on a
traffic stop just before 6pm at the location of Liberty Avenue and
20th Street. When Officer Loscar arrived on the scene, Officer
Modena was already on the driver's side of the vehicle, so he
approached the passenger side. As back-up unit, Officer Loscar
stayed at the passenger side of the vehicle while Officer Modena
went back to his vehicle to run the information.
Officer Modena came back to the vehicle and told all the
back-up officers to pull the occupants out of the vehicle. Officer
Loscar was responsible for removing [Appellant] from the rear
passenger side of the vehicle. Officer Modena next advised the
officers that the occupants were to be placed into custody.
Officer Loscar placed [Appellant] into custody and put him in the
rear of his vehicle. Officer Loscar proceeded to gather basic
information from [Appellant] to verify his identification, phone
number and address. [Appellant] provided his name as Pierre
Lavon Tatum; his address as 1016 Lemington Street, Johnstown,
PA; and phone number as 814-270-330. Officer Loscar testified
at the time of this traffic stop, he did not notice that [Appellant]
only provided a 9 digit number. According to Officer Loscar, the
reason none of [Appellant]'s numbers appeared in the arrest
report is due to the fact the report will not accept anything lower
than a 10 digit phone number.
The Commonwealth's second witness was Officer Todd
Modena, who previously testified at the Suppression Hearing.
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The officer identified Commonwealth's Exhibit 1 to be the five
bricks of heroin he observed under the driver's seat in a clear
plastic baggy. Commonwealth's Exhibit 1 (a) is the clear plastic
baggy that held the bricks of heroin. The officer identified
Commonwealth's Exhibits 1 (c) and 1 (d) as the crime lab
reports that analyzed that the drugs in question were, in fact,
heroin. Officer Modena identified: Commonwealth Exhibit 2 as
the black Galaxy phone of Ms. Patterson; Exhibit 3 as the Nokia
phone with the red cover of [Appellant]; and Exhibit 4 as the
black Motorola cell phone of Mr. Forsythe. According to the
officer, the phones were submitted to the property room initially
and once the search warrants were obtained, the Mobile Crime
Unit detectives performed an analysis of the phones.
Initially, the detectives had failed attempts to get into the
phones of Ms. Patterson and [Appellant]. At a later date, Ms.
Patterson provided the code to access her phone and the
detectives were successfully able to download her Samsung
Galaxy phone dumps.
Finally, Officer Modena testified that Exhibit 8, a photo of
the floor under the driver's seat, shows that access from under
the front seat from the front going back was hindered by an
electrical cord of some type. He also stated that the way he
went into the vehicle to recover the narcotics was from the back
and the packaged heroin was dead center under the driver's
seat.
The Commonwealth next called Officer Matt Tracy to
testify. Officer Tracy has been employed as a Pittsburgh Police
Officer for six years and the past year in the Pittsburgh Police
Computer Crime Unit. He underwent Secret Service training in
regards to Cellebrite, which is a program used to analyze phones
and computers, and has a Bachelor's degree in Information
Systems. Officer Tracy explained that Cellebrite is a software
used to dump information from different devices, such as cell
phones and iPads, etc. The Computer Crime Unit, for example,
will take a phone, plug it into their computer and the software
pulls the data from the phone, then the data is put into an
analyzer that puts it into a readable format. Officer Tracy was
then recognized as an expert witness in recovery of electronic
data from cellular phones and other electronic data.
Officer Tracy personally reviewed the phone dumps
performed by Detective Raymond Murray. He testified
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Commonwealth Exhibit 3(c), a dump from a SIM card from one
of the three cell phones in evidence, tells him the phone number
on this phone is 814-270-3306. Officer Loscar previously
testified that [Appellant] informed the officer that his cell phone
number was 814-270-330.
The Commonwealth and defense counsel stipulated that
the drugs were packaged with the intent to deliver. The
Commonwealth called [Detective] Philip Mercurio to testify as an
expert in the field of narcotics and as to his review of the text
messages in this case. He found text messages between Nancy
Patterson and a person referred to as DC, and the messages are
clearly indicative of heroin distribution. It further appeared to
[Detective] Mercurio that the individual referred to as DC on the
phone dump information was a drug dealer and that Nancy
Patterson was involved in the distribution of heroin.
The Court admitted into evidence Commonwealth Exhibit
2(d), the summary of the cell phone records/text messages
found on the phone dump from Ms. Patterson's cell phone.
[Detective] Mercurio found multiple text streams between Nancy
Patterson and DC that indicate heroin distribution. He was of the
opinion that the person utilizing the phone number 814-270-
3306 (DC/[Appellant]) was distributing heroin but was also using
Nancy Patterson to distribute as well.
Nancy Patterson was the fifth witness called by the
Commonwealth. Ms. Patterson admitted she was a co-defendant
in this case and she identified [Appellant] as the defendant in
the courtroom. She currently resides in Johnstown and has for
the past twenty years. She first met [Appellant] [during] the
summer of 2015 through a friend of her daughter for the
purpose of purchasing heroin. When the person who introduced
Ms. Patterson to [Appellant] told her his name, Ms. Patterson
thought she said DC, but she really said PT. [Appellant] gave
Ms. Patterson his cell phone number and said to call him if she
needed anything. Ms. Patterson stored his number in her phone
and labeled that contact as DC. She would call or text that
number a lot for the purpose of obtaining heroin, and she
recognized the voice as that of [Appellant]. She never had any
reason to believe that the person she was texting was not
[Appellant].
A few of the text message streams are summarized as
follows:
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On 6/8/15 there is an outgoing message to DC. "You
around?" DC says yeah.
"Smoke want to get 2 bags[."] Ms. Patterson testified she
meant 2 bags of heroin.
On 7/19/15 there is an outgoing message to DC. "R u
awake? I need to grab two more—two more them[."] She
was referring to two more bags of heroin.
On 8/1/15 there is an incoming message from DC. "Make
some calls so you can make some money[."] Ms.
Patterson replied, "K I will[."] Then, "I can't get ahold of
anyone[."] She admitted she tried to make some calls to
sell heroin, but couldn't get ahold of anyone.
On 8/7/15 Ms. Patterson sent DC a text looking for 2 bags
of heroin and on 8/11/15 there was an incoming message
from DC that he had some bags.
On 8/20/15 Ms. Patterson sent DC a text "How much u
charge for a bun[."] She explained that a bun equals 10
stamp bags. DC replied $70.
[]Commonwealth’s Exhibit 2(d).
On August 22, 2015, Ms. Patterson drove [Appellant] to
Pittsburgh to pick up heroin and Mr. Forsythe was a passenger in
the vehicle. She admitted to taking him to Pittsburgh prior to
August 22, 2015, to get heroin. [Appellant] would compensate
them for the drive by putting gas in the vehicle and giving them
a bun or 10 stamp bags of heroin. Once they got closer to
Pittsburgh, [Appellant] told her where to go in the Hill District.
They stopped at a housing project.
After Ms. Patterson parked, [Appellant] exited the vehicle
and told her to turn the other way. He walked down the street,
went into an apartment, came back out, crossed the street and
went into a little corner store. He then walked back down the
street and entered the vehicle in the rear, but she did not see
him carrying anything. He told her to pull out and she observed
an officer, in a marked vehicle, parked and facing her vehicle.
The officer followed them and eventually hit his lights for them
to pull over. [Appellant] told her to keep moving, but Ms.
Patterson said "No, I have to pull over." She put on her turn
signal pulled over and put the car in park. [Appellant] then
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threw a package up to Ms. Patterson and told her to hide it up
her dress, but she threw it back to him. Ms. Patterson was
shown Commonwealth's Exhibit 1 and 1(a). She identified them
as the plastic baggy and heroin that was thrown at her.
Mr. Leonard Forsythe was the Commonwealth's final
witness. He stated he travelled to Pittsburgh on August 22,
2015 with Nancy Patterson and [Appellant]. They drove up to
the Hill District: Nancy was driving, Leonard was in the front
passenger seat and [Appellant]/DC was in the back seat. He
calls Pierre DC because Nancy told him that was his nickname.
When they arrived at the apartment building in the Hill
District, [Appellant] jumped out of the car, ran to the top of the
hill, then came back down and ran across the street to a little
corner store. Mr. Forsythe and Ms. Patterson turned to face the
other way and that's when he noticed a police officer parked up
on the hill. Next, [Appellant] jumped into the vehicle and they
started to leave with the police officer following them.
When they reached Liberty Avenue, the officer activated
his lights and pulled them over. According to Mr. Forsythe, a
white bag came flying up to the front seats and [Appellant] said
to hide this. Nancy Patterson threw the bag back and said
something to the effect[,] [“]this shit ain't mine, I'm not hiding
it.[”]
TCO, 5/11/17, at 3-14 (citations to record omitted).
The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30); possession
of a controlled substance, 35 P.S. § 780-113(a)(16); and criminal conspiracy
(to commit PWID), 18 Pa.C.S. § 903. Appellant filed a motion to suppress
the seized contraband, which the trial court denied following a hearing on
October 4, 2016. This case immediately proceeded to a non-jury trial, with
the parties agreeing by mutual consent to incorporate the testimony from
the suppression hearing. On October 6, 2016, the trial concluded, but for
the rendering of the court’s verdict. On October 13, 2016, the trial court
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found Appellant guilty on all counts, and immediately sentenced him to time
served, plus six years’ probation for PWID, and no further penalty with
regard to the remaining counts. Appellant filed a timely notice of appeal,
and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court
issued its Rule 1925(a) opinion on May 11, 2017.
Appellant now presents the following questions for our review:
I. Did the Commonwealth fail to present sufficient evidence to
support [Appellant]'s convictions…?
[II]. Did the trial court abuse its discretion in admitting Court
Exhibit A, as the exhibit had only been disclosed to [Appellant]'s
counsel the night before trial?
Appellant’s Brief at 5.
Appellant’s first claim concerns the sufficiency of the evidence, and is
three-pronged, but interrelated. He first argues that the evidence was
insufficient to demonstrate his constructive possession of the seized heroin
based on the circumstances of its discovery. Second, Appellant contends
that the testimony of Patterson and Forsythe was so “contradictory on the
essential issues” that the resulting verdict constituted mere conjecture on
the part of fact-finder. Id. at 24. Third, Appellant argues that text-message
evidence failed to demonstrate the existence of a conspiracy to commit
PWID. Because the second prong informs Appellant’s claims with respect to
the first and third, we begin our analysis with that issue.
Our standard of review of sufficiency claims is well-settled:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
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the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim[,] the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Normally, as Appellant acknowledges, claims directed toward the
credibility of witnesses “challenge the weight, not the sufficiency, of the
evidence.” Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012).
Nevertheless, Appellant asserts the exception espoused by our Supreme
Court in Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 1976). In
Farquharson, the Supreme Court acknowledged the general rule, indicating
that “[t]raditionally[,] under our system of jurisprudence, issues of
credibility are left to the trier of fact for resolution.” Id. at 550. However,
the Court recognized that:
This concept … must be distinguished from an equally
fundamental principle that a verdict of guilt may not be based
upon surmise or conjecture. Following this principle, courts of
this jurisdiction have recognized that where evidence offered to
support a verdict of guilt is so unreliable and/or contradictory as
to make any verdict based thereon pure conjecture, a jury may
not be permitted to return such a finding.
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Id. The Farquharson Court identified this as the Bennett1 principle.
Accordingly, in extremely limited circumstances, this Court must reject the
credibility assessment of a factfinder on sufficiency grounds.2 Nevertheless,
in Farquharson, our Supreme Court determined that the credibility issues
in that case did not amount to a sufficiency problem.
Appellant contends that the instant case presents an exception to the
general rule. He argues that Patterson’s testimony was “legally insufficient”
because 1) she initially told police she did not know to whom the heroin
belonged; 2) she was receiving favorable treatment from the Commonwealth
in exchange for her testimony; 3) she was in a romantic relationship with
Forsythe; 4) she was a drug addict; and 5) her testimony was inconsistent in
____________________________________________
1 Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super. 1973).
2 For instance, one could imagine a scenario where all of the elements of a
crime, or the most critical elements, derived solely from a single witness’s
testimony. If the credibility of such testimony was wholly contingent on the
witness’s claim to possess superhuman powers, such as the ability to
observe the alleged criminal conduct through a brick wall (absent any
technological assistance), then an appellate court must reject such a claim
on sufficiency grounds. This is because such testimonial evidence would be
“in contravention to human experience and the laws of nature[.]” Widmer,
supra. Moreover, if the Commonwealth’s case hinges on the testimony of a
single witness, and that testimony is “so contradictory as to render it
incapable of reasonable reconciliation,” it may been deemed insufficient.
Farquharson, 354 A.2d at 550. In other words, the sufficiency standard
assumes the credibility of witnesses, but only up to a point where the
testimony hinges on the factfinder’s acceptance of impossible or virtually
impossible claims, or where conflicting testimony of a single witness cannot
be reasonably reconciled. This Court is not bound to accept, for sufficiency
purposes, any fact that is contingent on pure fantasy.
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other regards.3 See Appellant’s Brief at 23-26. Appellant raises similar
arguments about Forsythe’s testimony. Id. at 26-27.
None of these assertions concerning Forsythe’s or Patterson’s
credibility give rise to a sufficiency claim under the theories espoused in the
Farquharson/Bennett line of cases. In Bennett, the Commonwealth’s
sole witness, Jones, who had confessed to stealing a car, “sought to
implicate the defendant by giving several wholly different, conflicting and
inconsistent versions of when and how he had told her that the car had been
in fact stolen by him,” leading to the defendant’s conviction for receiving
stolen property. Bennett, 303 A.2d at 220. “With each new version[,]
Jones would recant the previous one and protest that the newest version
was in fact the true one.” Id. at 220–21. This was critical because the
defendant’s knowledge that the car was stolen was the heart of the
Commonwealth’s case against her for receiving stolen property, and Jones’
testimony was the prosecution’s only evidence of such knowledge.
Unfortunately, the Bennett decision does not detail with specificity
how many times Jones’ story changed, but it does leave a strong impression
that it was not merely once, and that it was not merely a denial upon arrest
coupled with in-court testimony that was inconsistent with that initial denial.
____________________________________________
3 Appellant contends that Patterson testified inconsistently regarding how
she was compensated for providing transportation for Appellant, and
concerning the ownership of the vehicle involved in this incident. See
Appellant’s Brief at 26.
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The Bennett decision suggests, instead, that Jones offered the jury
multiple, incompatible statements – at trial – on the critical issue of the
defendant’s knowledge about whether the car was stolen. None of the
statements were corroborated by any other witnesses or evidence.
By comparison, in this case, Forsythe and Patterson corroborated each
other’s testimony concerning all the elements of possession, PWID, and
conspiracy. Neither witness testified inconsistently about the basic, most
critical facts at trial: that Appellant was distributing heroin, and that on the
day in question, Patterson agreed to provide him with transportation for that
purpose. Appellant’s identification of inconsistent testimony regarding the
means by which he compensated Patterson for her services, as well as her
recollection regarding the ownership of the vehicle, were tangential matters
that were not critical to the elements of the charged offenses in this case.
Moreover, Forsythe and Patterson’s relationship and drug problems were
issues put before the jury to weigh when judging their credibility. Those
matters do not arise to the level of testimony based on pure fantasy or
impossibility, and the witnesses’ mutual corroboration of the critical facts of
this case is nothing like the internal contradictions of a single witness’s
testimony, as was at issue in Bennett. Accordingly, we ascertain that the
instant matter is not analogous to the exception recognized in Bennett and
Farquharson. Instead, the general rule applies; therefore, we must reject
this aspect of Appellant’s sufficiency claim.
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Appellant also asserts that the evidence was insufficient to
demonstrate his constructive possession of the seized heroin or the
existence of a conspiracy.
When contraband is not found on the defendant's person,
the Commonwealth must establish “constructive possession,”
that is, the power to control the contraband and the intent to
exercise that control. The fact that another person may also
have control and access does not eliminate the defendant's
constructive possession; two actors may have joint control and
equal access and thus both may constructively possess the
contraband. As with any other element of a crime, constructive
possession may be proven by circumstantial evidence. The
requisite knowledge and intent may be inferred from
examination of the totality of the circumstances. The fact that
the contraband is located in an area usually accessible only to
the defendant may lead to an inference that he placed it there or
knew of its presence.
Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)
(citations omitted).
Instantly, Appellant argues:
The Commonwealth failed to prove [Appellant]'s ability and
intent to exercise control over the heroin. [Appellant] was one
of three passengers in the Jeep where the heroin was found. He
did not own the car and therefore, had no possessory interest in
its contents. Furthermore, the heroin was found under the
driver's seat and [Appellant] was seated in the rear of the car.
Modena testified that there was some kind of electrical cord or
circuit underneath the driver's seat. Modena did not concede
that the cord and plug were blocking access to underneath the
seat. Rather, his exact testimony was, "I would say they [cord
and plug] would make access a little more difficult since they
were in the way." The trial court determined that, based partly
upon Modena's testimony about the seat arrangement, the only
plausible way for the heroin to get under the driver's seat was
for [Appellant] to have placed it there.
Appellant’s Brief at 20-21 (citations omitted).
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Appellant concedes, however, that the trial court found Forsythe and
Patterson’s testimony to be sufficient to demonstrate Appellant’s
constructive possession of the heroin. Id. at 21. Patterson specifically
identified the heroin package as having been in Appellant’s possession
immediately prior to its seizure. N.T., 10/4/16–10/6/16, at 204. Forsythe
then corroborated her testimony in this regard. Id. at 250. This testimony
was itself sufficient to demonstrate Appellant’s constructive possession of
the heroin. See Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa.
Super. 2013) (holding that an officer’s testimony, that he had observed the
defendant “hide two bricks of heroin[,]” was sufficient to demonstrate the
defendant’s constructive possession thereof). Although Officer Modena’s
testimony further corroborated this fact, his testimony was superfluous to
the direct observations made by Patterson and Forsythe. Accordingly, we
reject this aspect of Appellant’s sufficiency claim as well.
Similarly, Appellant contends that the text messages were “manifestly
vague” and, therefore, could not provide sufficient evidence of a conspiracy
in this case. Appellant’s Brief at 27. We disagree. Like Officer Modena’s
testimony regarding Appellant’s constructive possession of the heroin, the
text-message evidence in this case was superfluous to Patterson’s testimony
regarding the elements of conspiracy. Patterson testified that she was
transporting Appellant for the express purpose of aiding Appellant’s
distribution of heroin. See TCO at 18-19. As such, this aspect of Appellant’s
sufficiency claim also lacks merit.
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Next, Appellant contends that the trial court abused its discretion when
it admitted a spreadsheet of the text messages discovered on Patterson’s
cellphone. Appellant asserts that the spreadsheet was not disclosed to his
defense attorney until the night prior to trial, in violation of the discovery
rules.
Pa.R.Crim.P. 573 provides, in pertinent part, as follows:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant's attorney
all of the following requested items or information,
provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the
defendant's attorney to inspect and copy or photograph
such items.
***
(f) any tangible objects, including documents,
photographs, fingerprints, or other tangible
evidence;[]
***
(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.
(E) Remedy. If at any time during the course of the
proceedings it is brought to the attention of the court that a
party has failed to comply with this rule, the court may order
such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing
evidence not disclosed, other than testimony of the defendant,
or it may enter such other order as it deems just under the
circumstances.
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Pa.R.Crim.P. 573.
As our Supreme Court has noted: “questions involving
discovery in criminal cases lie within the discretion of the trial
court and that court's decision will not be reversed unless such
discretion was abused.” Commonwealth v. Rucci, 543 Pa.
261, 283, 670 A.2d 1129, 1140 (1996), cert denied 520 U.S.
1121, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997). “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. Hess, 745 A.2d 29, 31 (Pa.
Super. 2000).
Our Supreme Court has emphasized: “The purpose of our
discovery rules is to permit the parties in criminal matters to be
prepared for trial; trial by ambush is contrary to the spirit and
letter of those rules and will not be condoned.”
Commonwealth v. Appel, 547 Pa. 171, 204, 689 A.2d 891,
907 (1997); Commonwealth v. Moose, 529 Pa. 218, 235, 602
A.2d 1265, 1274 (1992). Our Court has also recognized that,
“generally, the purpose of discovery is to accord a defendant the
opportunity to discover evidence which he did not know existed,
as well as to seek possession of evidence of which he was
aware.” Commonwealth v. Fox, 422 Pa. Super. 224, 619 A.2d
327, 334 (1993), appeal denied 535 Pa. 659, 634 A.2d 222(1993) (internal quotation omitted). Consequently, “the
Commonwealth should exercise the utmost good faith to disclose
to defendant all material evidence in its possession when faced
with a mandatory discovery request.” Commonwealth v.
Schwartz, 419 Pa. Super. 251, 615 A.2d 350, 358 (1992),
appeal denied 535 Pa. 617, 629 A.2d 1379 (1993) quoting
Commonwealth v. Thiel, 323 Pa. Super. 92, 470 A.2d 145(1983).
Commonwealth v. Long, 753 A.2d 272, 276 (Pa. Super. 2000).
Appellant’s defense counsel first objected to the late disclosure of the
spreadsheet on the first day of trial. N.T., 10/4/16–10/6/16, at 105. The
trial court agreed that the spreadsheet was not timely disclosed to the
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defense, and afforded defense counsel additional time to review the
document. Id. at 108 (“[W]e’ll give her the night or whatever time she
needs in the morning[.]”). The following morning, defense counsel renewed
her objection when the Commonwealth sought to introduce the spreadsheet
evidence through the testimony of Detective Mercurio. Id. at 116. After a
lengthy discussion about whether the disclosure was untimely (despite the
trial court’s apparent ruling the previous day that it was, in fact, untimely),
see id. at 116-29, the trial court asked defense counsel: “Yesterday when
this issue was raised by you, I [asked] you whether you wanted a
continuance to review the spreadsheet. Did you have sufficient time
between when you received the summary sheet … and today to review the
sheet?” Id. at 129. Defense counsel responded, “I have.” Id. The court
then asked, “Then what’s the prejudice? Tell me. Because the rule is clear
and the committee notes and comments are clear, the most drastic remedy
this [c]ourt can impose as a sanction is to exclude evidence.” Id. at 129-30.
Under further questioning, defense counsel then admitted that the
spreadsheet was a summary of otherwise admissible evidence: the
underlying text messages. Id. at 130. Defense counsel continued to
demand exclusion of the spreadsheet summary as the only acceptable
remedy for the discovery violation. The trial court refused to exclude it, but
again indicated its willingness to provide defense counsel with another
continuance to review the spreadsheet, and also indicated that it would allow
the defense to call an expert to refute the summary. Id. at 132.
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Nevertheless, defense counsel ultimately indicated that she was ready to
proceed. Id. at 133.
Appellant now complains that the trial court’s remedy was not
sufficient to correct the prejudice of the untimely disclosure of the
spreadsheet, stating “the trial court’s remedy of a one-day continuance was
inadequate and simply not enough time for [Appellant’s trial counsel] to
properly prepare how to handle [the spreadsheet].” Appellant’s Brief at 32.
Appellant notes that: “Public [D]efender’s offices are chronically underfunded
and understaffed.” Id.
However,
[i]f a discovery violation occurs, the court may grant a trial
continuance or prohibit the introduction of the evidence or may
enter any order it deems just under the circumstances.
Pa.R.Crim.P. 573(E) (formerly Rule 305(E)). The trial court has
broad discretion in choosing the appropriate remedy for a
discovery violation. Commonwealth v. Johnson, 556 Pa. 216,
727 A.2d 1089 (1999). Our scope of review is whether the court
abused its discretion in not excluding evidence pursuant to Rule
573(E). Id. (citing Commonwealth v. Jones, 542 Pa. 464,
668 A.2d 491 (1995)).
A defendant seeking relief from a discovery violation must
demonstrate prejudice. Id. (citing Commonwealth v.
Counterman, 553 Pa. 370, 719 A.2d 284 (1998)). A violation
of discovery “does not automatically entitle appellant to a new
trial.” Jones, 668 A.2d at 513 (Pa. 1995). Rather, an appellant
must demonstrate how a more timely disclosure would have
affected his trial strategy or how he was otherwise prejudiced by
the alleged late disclosure. Id. (citing Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630, 636–38 (1991) (no
error in denial of mistrial motion for untimely disclosure where
appellant cannot demonstrate prejudice)).
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003).
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We conclude that the trial court did not abuse its discretion when it
declined to exclude the spreadsheet based on the Commonwealth’s
discovery violation. Appellant did not complain at trial that the initial one-
day continuance was inadequate to prepare a strategy to respond to the
spreadsheet. Instead, in formalistic fashion, Appellant’s counsel insisted on
exclusion as the only acceptable remedy, despite her indication that she was
able to proceed after the court offered a second continuance to review the
untimely-disclosed evidence. Indeed, Appellant provided no argument as to
how or why the purported prejudice resulting from the late disclosure was
inadequately remedied by the additional time afforded to review the
document. Additionally, the resulting prejudice was necessarily minimal, as
defense counsel conceded at trial that the spreadsheet was merely a
summary of otherwise admissible evidence, and thus could not properly be
characterized as an attempt to ambush the defense. There is no indication
that anything in the spreadsheet was exculpatory in nature. Moreover,
when offered even more time to review the document, or the opportunity to
obtain an expert to refute the spreadsheet, defense counsel declined.
Accordingly, we conclude that the trial court did not abuse its
discretion when it refused to exclude the spreadsheet. Although the
Commonwealth violated the discovery rules in a technical sense, the
resulting prejudice was minimal. Furthermore, the trial court’s remedy was
proportional to the violation, if not outright generous to the defense.
Consequently, Appellant’s second claim lacks merit.
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Judgment of sentence affirmed.
President Judge Emeritus Stevens joins this memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2018
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