Com. v. Irwin, C. ( 2020 )

J-A01012-20 & J-A01013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COLIN IRWIN : No. 840 EDA 2019
Appeal from the Order Entered March 15, 2019
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000168-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COLIN IRWIN : No. 1038 EDA 2019
Appeal from the Order Entered March 14, 2019
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000168-2018
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 28, 2020
At 840 EDA 2019, the Commonwealth appeals from the order prohibiting
the prosecution from presenting testimony from the complainant and two
eyewitnesses as a sanction for a discovery violation. At 1038 EDA 2019, the
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* Retired Senior Judge assigned to the Superior court.
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Commonwealth appeals from the order denying its request to continue the
sanctions hearing. We reverse the trial court’s order at 840 EDA 2019 and
remand for further proceedings. In light of our disposition, we dismiss the
appeal at 1038 EDA 2019 as moot.
Briefly, Appellee was charged with aggravated assault, simple assault,
and harassment1 after he allegedly punched Christopher James Barbaro (the
complainant) in the face. After the incident, Pennsylvania State Trooper John
Medrano took statements from the complainant, as well as eyewitnesses
Jammie L. Fabela, Jr., and Alex Michael Simmons. On May 7, 2018, the
Commonwealth filed a criminal information charging Appellee with the
aforementioned offenses.2
The trial court summarized the subsequent procedural history as
follows:
[Appellee] requested [informal] discovery from the District
Attorney’s Office on August 28, 2018. [Appellee] received a
discovery packet on December 21, 2018, and the Commonwealth
indicated that there were additional investigative materials in the
possession of the Pennsylvania State Police that the
Commonwealth had not yet received. Specifically, the discovery
packet did not contain the [complainant’s] statement and
statements from at least two witnesses of the alleged assault who
were interviewed at the Pennsylvania State Police Blooming Grove
Barracks on June 14, 2017. The police report within the discovery
packet included synopses of the witness statements, which
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1 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), and 2709(a)(1), respectively.
2 Based on testimony from Trooper Medrano at the preliminary hearing, the
trial court held Appellee for court on all charges.
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included what was said before the alleged fight broke out, how
[Appellee] allegedly exited the vehicle before the alleged fight
broke out, and the number of witnesses at the scene. The
synopses of the witnesses’ statements also mention[ed] [one]
additional witness who [was] not named in the police report.
[Appellee] argued that the [one] additional witness may be
specifically named in the undisclosed witness statements.
[Appellee] initially filed a motion for discovery on December 21,
2018.[3] After a hearing held on January 24, 2019,[4] and without
objection from the Commonwealth, [the trial c]ourt issued an
order [for] the Commonwealth to disclose all mandated discovery
materials, including witness statements, to counsel for [Appellee]
within fourteen (14) days of the date of that order. The order
specifically provided that the failure to provide the mandated
discovery materials would result in sanctions, including preclusion
of the introduction of such materials at trial. As previously noted,
the Commonwealth did not object to the entry of this order. At
the time of entry of the [trial c]ourt’s January 24, 2019 order, the
above matter was scheduled for jury trial during the March 2019
Criminal Term of Court.
[Appellee] next filed an emergency motion for sanctions for
discovery violations on March 12, 2019, three (3) days prior to
the date of jury selection for the March 2019 Criminal Term of
Court.[5] By order dated March 12, 2019, [the trial c]ourt
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3 Appellee explained that the Commonwealth had attempted to obtain the
missing witness statements, but “for unknown reasons,” the state police had
failed to produce them. See Mot. for Discovery, 12/21/18, at 1. Appellee
requested an order from the trial court “directing the Pennsylvania State Police
to provide any and all investigative materials, including but not limited to
witness statements, to counsel for the Commonwealth immediately . . . for
the purpose of providing mandatory discovery to the defense.” Id. at 2.
Appellee also indicated that the Commonwealth concurred in the motion. Id.
4 The certified record does not contain a transcript from this hearing.
5Appellee argued that he could not effectively cross-examine the complainant
or the eyewitnesses without copies of their actual statements. See Mot. for
Sanctions, 3/12/19, at 6 (unpaginated). Further, Appellee asserted that he
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scheduled a hearing on [Appellee]’s emergency motion [for]
March 14, 2019. The Commonwealth filed a written motion for
continuance on March 13, 2019.[6] [The trial c]ourt denied the
Commonwealth’s motion for continuance on March 14, 2019, and
a hearing was held on [Appellee]’s emergency motion on the
scheduled date of March 14, 2019.
Trial Ct. Op., 5/14/19, at 1-3.
At the sanctions hearing, Appellee acknowledged that the
Commonwealth did everything possible to obtain the missing discovery,
“including phone calls, texts, letters, [and] sending copies of the [m]otion” to
state police. N.T., 3/14/19, at 11. Nonetheless, Appellee argued that the
Commonwealth should be sanctioned because “the state police didn’t turn
over necessary documents that they were ordered to turn over” and a
continuance would give the Commonwealth “another bite at the apple.” Id.
at 14-15. Further, Appellee argued that an additional delay would be unfair
because Appellee had “a clean record and he has aggravated assault charges
holding over his head.” Id. at 13.
In response, the Commonwealth presented testimony from Sarah
Wilson, Esq., the Assistant District Attorney assigned to Appellee’s case. Id.
at 15. ADA Wilson stated that “[d]ating back to the date of the preliminary
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could not adequately prepare for trial without the name of the fourth witness,
who was identified in the missing witness statements. Id.
6 The Commonwealth stated that it intended to present testimony from
Trooper Medrano of the Pennsylvania State Police. See Mot. for Trial
Continuance, 3/13/19, at 1. However, because the hearing was scheduled for
the next day, the Commonwealth “was unable to secure and serve subpoenas
upon the necessary witnesses for the hearing upon [Appellee’s] emergency
motion.” Id. at 2.
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hearing I had indicated to Trooper Medrano that I would need . . . those three
statements on numerous occasions in order to provide them to the defense
and to prepare for trial.” Id. at 20. On cross-examination, Appellee asked
ADA Wilson if she “had actually seen those statements to exist.” Id. at 21.
ADA Wilson stated that she “saw statement forms in the possession of Trooper
Medrano [at the preliminary hearing] which he indicated were in reference to
this case. I do not know whose exactly statement form I saw.” Id.
The Commonwealth introduced exhibits detailing ADA Wilson’s efforts to
obtain the missing witness statements, which included (1) an October 15,
2018 email from ADA Wilson to Trooper Medrano; (2) a December 21, 2018
email from ADA Wilson to Appellee suggesting that he file a motion to compel
discovery in light of the state police’s failure to provide the missing
statements; and (3) a February 11, 2019 email from ADA Wilson to Trooper
Medrano, which included a copy of the trial court’s January 30, 2019 order to
compel discovery. Id. at 16-18. ADA Wilson also indicated that she
exchanged text messages with Trooper Medrano and spoke with him in person
about the missing statements, but he failed to provide them. Id. at 20.
The Commonwealth acknowledged that it was responsible for providing
exculpatory discovery materials to the defense, even when those items are in
police custody. Id. at 22-23. However, the Commonwealth argued that “the
exact substance” of these particular statements was based on speculation by
Appellee. Id. at 22. Finally, the Commonwealth addressed the trial court as
follows:
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Your Honor perhaps there [were] some statements that existed at
one point. We don’t know if they are still there. It is my
understanding that the Court has denied a continuance or will
deny continuance for us to have the state police subpoenaed to
come here to say whether those statements exist, whether they
lost them which may be helpful to this Court if the Court is going
to impose any sanctions on the Commonwealth where the
Commonwealth has a [complainant] in this case.
Id. at 23.
The trial court took Appellee’s motion under advisement, and the matter
remained scheduled for jury selection. On March 15, 2019, the trial court
granted Appellee’s motion. As a sanction for the discovery violation, the trial
court issued an order precluding testimony from the complainant and the two
eyewitnesses. The trial court also issued an order denying the
Commonwealth’s continuance request.
At 840 EDA 2019, pursuant to Pa.R.A.P. 311(d),7 the Commonwealth
timely appealed from the order imposing sanctions. At 1038 EDA 2019, the
Commonwealth timely appealed from the order denying its request to continue
the sanctions hearing. The Commonwealth complied with the trial court’s
orders to file Pa.R.A.P. 1925(b) statements at both docket numbers. The trial
court issued a Rule 1925(a) opinion asserting that the Commonwealth’s claims
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7 “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).
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were meritless and its appeal from the order denying its continuance request
should be quashed.
The Commonwealth raises the following issues on appeal:8
1. Whether the [trial] court abused its discretion by precluding
testimony of the [complainant] and two eyewitnesses[,] a
judgment manifestly unreasonable under the circumstances,
where [Appellee] had knowledge of statements made by the
[complainant] and witnesses, the police were in sole
possession of the statements and [Appellee] failed to
demonstrate the statements were exculpatory or that
[Appellee] was prejudiced by lack of access?
2. Whether the [trial] court unreasonably and arbitrarily denied a
Commonwealth motion for continuance of a discovery
sanctions hearing, when the Commonwealth was given only
one full day notice to secure the affiant’s attendance at the
hearing?
Commonwealth’s Brief at 4.
The Commonwealth argues that “the preclusion of the [complainant]
and [eyewitness] testimony is tantamount to that of a dismissal of the case.”
Id. at 10. The Commonwealth acknowledges that a trial court has discretion
to fashion an appropriate remedy for a discovery violation. Id. However, it
argues that a dismissal is “extreme and should only be used where egregious
and blatant prosecutorial misconduct is present. When a prosecutor has no
deliberate bad faith and no intention to deprive the defendant of a fair trial,
the appropriate remedy should be less severe than a dismissal.” Id. The
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8 On July 12, 2019, this Court denied the Commonwealth’s request to
consolidate the two docketed appeals. However, we directed the
Commonwealth to file one brief addressing the issues raised in both appeals.
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Commonwealth asserts that it “took all measures it could in reaching out to
Pennsylvania State Police to obtain the” missing statements and there was no
showing that the Commonwealth engaged “in willful bad faith or blatant
prosecutorial misconduct.” Id. Further, it contends that Appellee failed to
establish “how the discovery was exculpatory and therefore, the missing
statements were non-mandatory discovery.” Id. at 11.
“Decisions involving discovery matters are within the sound discretion
of the trial court and will not be overturned absent an abuse of that discretion.”
Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation
and quotation marks omitted), appeal denied, 189 A.3d 986 (Pa. 2018). “An
abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.” Id. (citation and quotation marks
omitted).
Rule 573 of the Pennsylvania Rules of Criminal Procedure governs
pretrial discovery in criminal cases and 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.
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(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the possession
or control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or
the substance of any oral confession or inculpatory
statement, and the identity of the person to whom the
confession or inculpatory statement was made that is in the
possession or control of the attorney for the
Commonwealth;
* * *
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise provided in Rules
230 (Disclosure of Testimony Before Investigating Grand
Jury) and 556.10 (Secrecy; Disclosure), if the defendant
files a motion for pretrial discovery, the court may order the
Commonwealth to allow the defendant’s attorney to inspect
and copy or photograph any of the following requested
items, upon a showing that they are material to the
preparation of the defense, and that the request is
reasonable:
(i) the names and addresses of eyewitnesses;
(ii) all written or recorded statements, and
substantially verbatim oral statements, of
eyewitnesses the Commonwealth intends to call at
trial;
* * *
(iv) any other evidence specifically identified by the
defendant, provided the defendant can additionally
establish that its disclosure would be in the interests
of justice.
* * *
(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
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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.
Pa.R.Crim.P. 573(B)(1), (E).
We have explained that
Rule 573 does not abridge or limit the Commonwealth’s duty to
provide discovery pursuant to Brady v. Maryland, 373 U.S. 83,
(1963), and its progeny. “In Brady, the United States Supreme
Court held that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment
irrespective of the good faith or bad faith of the prosecution.”
Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001)
(quotation marks omitted). “There are three components of a true
Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Commonwealth v. Maldonodo, 173 A.3d 769, 774 (Pa. Super. 2017) (some
citations omitted).
The duties to disclose information imposed by Brady and Rule 573 are
overlapping, but they are not identical. See id.; see also Commonwealth
v. Sullivan, 820 A.2d 795, 802-03 (Pa. Super. 2003). The focus of Brady is
the prompt disclosure of evidence that is favorable to the defense, which is
incorporated in Rule 573(B)(1)(a). Rule 573 is broader to the extent it
requires disclosure of inculpatory information. See Sullivan, 820 A.2d at
803-04.
However, our Supreme Court has explained that
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[a]s the text of Rule 573(B)(1) suggests, when the evidence is
exclusively in the custody of police, possession is not attributed to
the Commonwealth for purposes of Rule 573. [Burke, 781 A.2d
at 1142]. Whether the Commonwealth’s failure to disclose
evidence that is exclusively in police custody constitutes a
violation of [Brady], of course, is a different matter. If the
undisclosed evidence implicates Brady (i.e., if it is favorable to
the accused and its non-disclosure resulted in prejudice to his
case), then the Commonwealth is charged with its possession
even while it is exclusively in the custody of police. Kyles v.
Whitley, 514 U.S. 419, 437-38, (1995); Burke, 781 A.2d at 1142
& n. 6 (making this distinction between Brady cases and Rule 573
cases).
Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (some citations
omitted).
The purpose of the discovery rules is to prevent a trial by ambush that
violates a defendant’s right to due process. Commonwealth v. Ulen, 650
A.2d 416, 419 (Pa. 1994) (discussing the prior version of Pa.R.Crim.P. 573).
If the Commonwealth commits a discovery violation, “[t]he trial court has
broad discretion in choosing the appropriate remedy.” Commonwealth v.
Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citations omitted). However,
such “discretion is not unfettered.” Commonwealth v. Smith, 955 A.2d 391,
395 (Pa. Super. 2008) (en banc) (citation omitted). This Court has suggested
that in most cases, “[a] continuance is appropriate where the undisclosed
statement or other evidence is admissible and the defendant’s only prejudice
is surprise.” Id.“In some cases, under some facts, it may be appropriate for a court to
dismiss charges where the Commonwealth fails to abide by an order of that
court.” Commonwealth v. Robinson, 122 A.3d 367, 372 (Pa. Super. 2015)
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(citation omitted). However, “[t]he failure must involve a failure of justice or
prejudice to a defendant to justify the discharge of a criminal action. When
such interests are not involved, the offending party may be otherwise
sanctioned without defeating the public interest.” Id. (citation omitted).
As our Supreme Court has explained,
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 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.
* * *
While this Court does not minimize the ethical and legal
obligations of the prosecution to comply with lawful discovery
requirements, where there is no evidence of deliberate, bad faith
overreaching by the prosecutor intended to provoke the defendant
into seeking a mistrial or to deprive the defendant of a fair trial,
the proper remedy for the Commonwealth’s failure to disclose
exculpatory materials should be less severe than dismissal.
Burke, 781 A.2d at 1144, 1146 (citations omitted).
Here, the trial court acknowledged that the Commonwealth attempted
to obtain the missing witness statements from the State Police. See Trial Ct.
Op., 5/14/19, at 7. Nonetheless, the trial court granted Appellee’s motion for
discovery sanctions,
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in part because of our prior order dated January 30, 2019, which
ordered the disclosure of any mandated discovery, specifically any
witness statements. The January 30, 2019 order also specifically
noted that the Commonwealth would suffer appropriate sanctions
if it failed to provide such materials within fourteen days of the
date of that order. We further noted that the written statements
of the [complainant] and two alleged witnesses were material and
germane to the charges filed against [Appellee]. Finally, we noted
that ample opportunity was afforded to the Commonwealth to
provide these mandated discovery materials and that no reason
was offered as to the failure to provide the materials.
* * *
It remains unclear to this court as to why the Pennsylvania State
Police never forwarded the [complainant] and witness statements
to the District Attorney’s office and why the latter was unable to
obtain such statements from the former for such an extended
period of time. It is undisputed, however, that, as of March 15,
2019, the date of jury selection for the March 2019 Criminal Term
of Court, the Commonwealth had not yet produced copies of such
statements to the defense. The record reflects ample opportunity
was provided to the Commonwealth to produce such discovery
materials and notice was given, by virtue of the January [30],
2019 order, of the Court’s intention to enter sanctions if the
discovery materials were not produced.
As the Commonwealth failed to provide such [complainant] and
witness statements, this court had to determine the appropriate
sanctions to impose for the discovery violation. The mere
preclusion of introduction of the [complainant] and witness
statements would have been insufficient in this matter since the
[complainant] and witnesses would have then been allowed to
testify at trial even though the defense was not provided with their
respective police statements prior to trial. Given the length of
time in which the Commonwealth had to produce the discovery
materials and the high likelihood of the subject statements
containing exculpatory materials for the defense, i.e., eyewitness
accounts of the alleged assault, it was clear to this court that the
extreme sanction of preclusion of the testimony of the
[complainant] and two witnesses was warranted.
Based on the aforementioned reasons, this court stands by its
March 15, 2019 order and believes that the sanction imposed on
the Commonwealth which preclude[d] the material testimony of
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the [complainant] and two alleged witnesses at trial is appropriate
in light of the discovery violation committed by the
Commonwealth. We believe it to be obvious that the undisclosed
statements would be significant and absolutely necessary in order
for [Appellee] to prepare adequately for trial. Certainly, the non-
disclosure of the subject statements could not simply be ignored.
Although the Commonwealth provided credible evidence as to its
efforts to obtain the mandated discovery materials, we believe the
sanctions imposed are appropriate in light of the relevant
Supreme Court and Pennsylvania case law on this issue as well as
this court’s discretion in fashioning an appropriate discovery
sanction based on the circumstances of the particular case.
Id. at 7-9 (some formatting altered).
Based on our review of the record, we understand the trial court’s
frustration with the Commonwealth. Nonetheless, we are constrained to
conclude that the trial court abused its discretion by imposing sanctions that
amounted to a dismissal of the charges against Appellee. See Smith, 955
A.2d at 395. The trial court made no finding of prosecutorial misconduct.
Instead, the trial court found that the Commonwealth “provided credible
evidence as to its efforts to obtain the mandated discovery materials.” See
Trial Ct. Op. at 4. Although the Commonwealth could have exercised greater
diligence, based on this record, its failure to obtain the witness statements
does not rise to the level of blatant misconduct warranting dismissal. See
Burke, 781 A.2d at 1146; see also Smith, 955 A.2d at 395 (stating that
dismissal was inappropriate where the Commonwealth’s discovery violation
was not intended to provoke the defendant into seeking a mistrial or deprive
him of a fair trial).
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Further, there is no indication that Appellee would suffer undue
prejudice if the Commonwealth was provided with another opportunity to
obtain the missing witness statements.9 See Burke, 781 A.2d at 1146; see
also Robinson, 122 A.3d at 372 (stating where there is no “failure of justice
or prejudice to a defendant to justify the discharge of a criminal action,” then
other sanctions can be imposed “without defeating the public interest”
(citation omitted)). Accordingly, we reverse the trial court’s order imposing
sanctions at 840 EDA 2019, and remand the matter to the trial court for
further proceedings consistent with this memorandum.
Given our disposition of the Commonwealth’s first issue, we decline to
address whether the trial court abused its discretion by denying the
Commonwealth’s request for a continuance of the sanctions hearing. Further,
in light of the fact that the Commonwealth has obtained the missing witness
statements, there is no need for the trial court to conduct a new hearing.
Therefore, we dismiss the appeal at 1038 EDA 2019 as moot.
Order at 840 EDA 2019 reversed. Appeal at 1038 EDA 2019 dismissed
as moot. Case remanded. Jurisdiction relinquished.
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9 Indeed, on April 23, 2019, the Commonwealth filed an answer to Appellee’s
discovery motion, which included the missing witness statements along with
an email from Trooper Medrano. Trooper Medrano apologized for the
confusion, and indicated that that the missing report was located after having
been “misfiled.” See Commonwealth’s Answer to Mot. for Discovery in a Crim.
Case, 4/23/19, Ex. 1.
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Judge Murray joins the memorandum.
Judge Colins files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/20
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