Com. v. DiNuble, S. ( 2021 )

J-A23008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3049 EDA 2018
SALVATORE J. DINUBLE
Appeal from the Order Entered September 19, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): MC-51-CR-0006636-2018.
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 12, 2021
This is an appeal by the Commonwealth from the trial court’s order
denying its petition for writ of certiorari. We reverse and remand.
The trial court summarized the pertinent facts and procedural history as
follows:
On February 20, 2018, an altercation occurred between
Appellee, Salvatore Dinuble, and the complaining witness.
Appellee went to the complaining witness’ home, threatened
to kill the complaining witness, and pinned the complaining
witness against a car before the complaining witness
escaped inside his home and locked the door. On March 12,
2018, police arrested Appellee and [Appellee] was charged
with terroristic threats, simple assault, and recklessly
endangering another person [all graded as misdemeanors].
On May 3, 2018, [the Commonwealth] passed discovery and
on June 8, 2018, [trial counsel] entered his appearance on
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* Retired Senior Judge assigned to the Superior Court.
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behalf of [Appellee]. On June 18, 2018, [the
Commonwealth] called the complaining witness to testify
and when offered for cross, Appellee motioned to exclude
the complainant’s testimony under Pa.R.Crim.P. 573. [The
Commonwealth] inadvertently provided half of the
complainant’s statement in discovery due to a copy error
and [the Commonwealth] did not copy both sides of the
pages sent to Appellee. The [municipal court] granted
Appellee’s motion to exclude the complainant’s testimony
and statement. [The Commonwealth] passed the missing
statement pages to Appellee on June 20, 2018, and [the
Commonwealth] filed a writ of certiorari heard in front of
this [c]ourt on September 19, 2018. This [c]ourt upheld the
[municipal court] on September 19, 2018.
Trial Court Opinion, 2/11/20, at 1-2. This timely appeal by the Commonwealth
followed.1 Both the Commonwealth and the trial court complied with Pa.R.A.P.
1925.
The Commonwealth now raises the following issue:
Did the lower court err by precluding the complaining
witness’s testimony in its entirety based on an inadvertent
mechanical error in transmitting discovery (scanning one
side of the witness’s two-sided statement), and by denying
the Commonwealth’s request for a less severe remedy such
as a continuance or mistrial?
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1 “In 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). The Commonwealth has complied with this requirement. See
also Pa.R.Crim.P. 1006(B) (providing that if the municipal court’s pretrial
decision is adverse to the Commonwealth, the municipal court “shall grant the
Commonwealth a continuance upon motion of the attorney for the
Commonwealth in order to give the attorney for the Commonwealth the
opportunity to take an appeal”).
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Commonwealth’s Brief at 4.
Discovery in criminal cases is governed by Pennsylvania Rule of Criminal
Procedure 573. This Court has summarized a trial court’s options when a
discovery violation occurs, as well as our scope and standard of review, as
follows:
If 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)[ ]. 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 [excluding or] 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[]. 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 a mistrial motion for untimely disclosure where
appellant cannot demonstrate prejudice)).
Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citing
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003).
The Commonwealth contends that the municipal court’s sanction of
precluding the complainant’s testimony “effectively amounted to dismissal of
the case that was inappropriate under the circumstances.” Commonwealth’s
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Brief at 11. This Court has discussed the severity of the sanction of dismissal
of charges as a remedy for a discovery violation:
[T]he discretion to dismiss is not unfettered, and as it is
such a severe sanction, should be used only in instances of
absolute necessity. Dismissal of criminal charges punishes
not only the prosecutor . . . but also the public at large,
since the public has a reasonable expectation that those who
have been charged with crimes will be fairly prosecuted to
the full extent of the law. Thus, the sanction of dismissal of
criminal charges should be utilized only in the most blatant
of cases. Given the public policy goal of protecting the
public from criminal conduct, a trial court should consider
dismissal of charges where the actions of the
Commonwealth are egregious and where demonstrable
prejudice will be suffered by the defendant if the charges
are not dismissed.
Commonwealth v. Robinson, 122 A.3d 367, 372 (Pa. Super. 2015) (citing
Commonwealth v. Shaffer, 712 A.2d 749, 752 (Pa. 1998)).
Here, the Commonwealth argues that the municipal court “abused its
discretion by completely striking the testimony of the Commonwealth’s lone
witness because of an inadvertent discovery violation that could have been
cured by a continuance.” Commonwealth’s Brief at 11. Although the trial
court2 originally affirmed the municipal court’s sanction, in its Rule 1925(a)
opinion, the trial court now concludes that it should have reversed the
municipal court’s decision:
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2 Appellee’s trial began in the Philadelphia Municipal Court. See generally,
Pa.R.Crim.P. 1003. This Court has held that, when a party files a petition for
writ of certiorari, “the Philadelphia Court of Common Pleas sits as an appellate
court.” Commonwealth v. Coleman, 19 A.3d 1111, 1119 (Pa. Super. 2011).
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In the present appeal, Appellee was unable to provide
any evidence of prejudice suffered or faced due to [the
Commonwealth’s] discovery mistake. Based on a review of
the above mentioned case law, dismissal was not the
appropriate remedy for the discovery error made by the
Commonwealth in this case on appeal.
Based on the foregoing, this [c]ourt respectfully
concedes [it abused its discretion] and asks for [the
Commonwealth’s] position to prevail.
Trial Court Opinion, 2/11/20, at 3-4 (citation omitted).
Our review of the record supports that trial court’s conclusion that it
abused its discretion when it affirmed the municipal court’s remedy for the
Commonwealth’s discovery violation. As asserted by the Commonwealth, the
municipal court had several options short of precluding the complainant’s
testimony, such as granting a short continuance to provide the missing pages
inadvertently omitted by the Commonwealth during the discovery process.
In his brief, Appellee argues that he was prejudiced because “the
Commonwealth failed to provide [him] the entire statement of the complaining
witness until after he was cross-examined by Appellee’s [c]ounsel.” Appellee’s
Brief at 5.3 Without referencing any specific testimony or statements made
by the complainant in the omitted pages, Appellee asserts that the written
statement contradicted the complainant’s trial testimony, and he was,
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3Our reading of the record reveals that the municipal court granted Appellee’s
motion to exclude the complainant’s testimony shortly after his counsel began
cross-examination. See N.T., 6/18/18 at 19-20.
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therefore, “clearly prejudiced.” Id.4 Appellee does not explain how the grant
of a less severe remedy would not have cured any prejudice, e.g., the grant
of a short continuance to allow his trial counsel to review the omitted pages
and continue his cross-examination.5
In sum, we agree that the municipal court’s remedy for the
Commonwealth’s discovery violation should have been reversed. We
therefore reverse the denial of the Commonwealth’s petition for writ of
certiorari and remand the case for continuation of trial.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
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4 Contrarily, in its brief the Commonwealth provides specific reference to how
the contents of the omitted pages had no bearing on the complainant’s trial
testimony. See Commonwealth’s Brief at 16-17.
5 In support of his prejudice claim, Appellee references an unpublished
memorandum of this Court filed on February 11, 2013. See Appellee’s Brief
at 11-12 (citing Commonwealth v. Burkett, 68 A.3d 358 (Pa. Super. 2012)
(table)). We remind counsel that unpublished memoranda from this Court
filed prior to May 1, 2019, “shall not be relied upon or cited by . . . a party in
any other action or proceeding”). Nonetheless, in Burkett, this Court agreed
with the trial court that “recalling the witnesses cured any possible prejudice
to [the appellant] caused by the non-disclosure of the statements during the
discovery process.” Id. at 7-8. As noted above, Appellee fails to explain why
recalling the complainant after the late disclosure in this case would not have
cured any prejudice.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2021
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