Com. v. Kennerly, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA KENNERLY : No. 295 EDA 2020
Appeal from the Order Entered December 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001417-2019
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 07, 2021
The Commonwealth of Pennsylvania (“the Commonwealth”) appeals
from the Order dismissing the criminal charges against Joshua Kennerly
(“Kennerly”). After careful review, we reverse and remand for further
proceedings.
On October 29, 2018, Kennerly was arrested for using a fake
identification card in attempting to purchase two cellular telephones at a
Verizon store in Philadelphia, Pennsylvania, and charging them to the Verizon
account of Andrew Bunger (“the victim”). Kennerly was charged with one
count each of forgery, theft by deception, identity theft, and resisting arrest.1
At Kennerly’s preliminary hearing on February 26, 2019, a Verizon employee
testified that video surveillance of the incident existed. The trial court ordered
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1 18 Pa.C.S.A. §§ 4101(a)(1), 3922(a)(1), 4120(a), 5104.
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the Commonwealth to procure and preserve such evidence, and to make it
available to Kennerly. The Commonwealth thereafter requested, and the trial
court granted, two continuances in order to procure the surveillance video.
On December 12, 2019, Kennerly appeared for his bench trial, which
was scheduled to begin at 9:00 a.m. At approximately 11:30 a.m., the
Commonwealth informed the trial court that while the victim was present and
was prepared to testify, it did not have the surveillance video, and that its
eyewitnesses were running late. N.T., 12/12/19, at 2. After a discussion, the
trial court stated the following:
I’m going to have to dismiss the case because there is no case. If
we had eye witnesses I would let you proceed without referencing
the video. But we don’t have eye witnesses, and they can’t be
coming to my courtroom at 1 o’clock when we start at 9 o’clock.
That’s not acceptable. I mean, it’s unfortunate. But if we had the
video -- we just don’t have anything. We have no eye witness
and we have no video. So we have nothing -- except for the
complainant, who unfortunately is the one who’s getting the short
end of the stick here because the people who actually interacted
with the person didn’t come to court on time and there’s no
video[.]
Id. at 7. At that point, the Commonwealth informed the trial court that the
eyewitness, who had personally observed the transaction, had, in fact, just
arrived and was prepared to testify. Id. Kennerly’s counsel responded that
the outstanding video still presented a problem, as the eyewitness could not
be impeached without it. Id. at 8-9. The Commonwealth suggested a
negative inference regarding the video; however, the trial court indicated to
the Commonwealth that it could not reference the video, or anything that the
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video depicted. Id. at 11-12. The Commonwealth responded that such a
prohibition would constructively dismiss its case. Id. at 12-13.
The trial court took the matter under advisement, and after a short
recess, stated the following:
All right. I’ve gone back and forth with what we’re going to do
with this case. Long story short, I’m dismissing it. The video is,
to me, too important. I guess if we’re talking about a statement
that got there late [sic], we’re talking about he gets back the video
yesterday, that’s different, but I don’t think we can go forward
without the video.
Id. at 13-14. The Commonwealth filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
The Commonwealth presents the following issue for our review:
Did the trial court abuse its discretion by imposing the extreme
sanction of dismissal for (1) a discovery violation where
[Kennerly] would not have been prejudiced by a less severe
remedy and the Commonwealth acted in good faith by requesting
two trial continuances to attempt to locate and disclose
surveillance video of [Kennerly]’s crimes and then, when it was
unable to obtain the video, informed the [trial] court and opposing
counsel before trial, agreed to a remedy that all references to the
video’s existence be precluded, and even proposed a negative
inference against the Commonwealth; and (2) the
Commonwealth’s witnesses’ lateness[,] where the necessary
witnesses were present before the [trial] court dismissed the
case?
Brief for Appellant at 4.
The Commonwealth argues that the trial court abused its discretion in
dismissing the charges against Kennerly based on the missing surveillance
video. Id. at 13. The Commonwealth asserts that dismissal was
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inappropriate, as the record did not reflect that the video was exculpatory
pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Brief for Appellant at
13-15. The Commonwealth further claims that it did not act in bad faith
regarding the video’s production, as the Commonwealth promptly informed
the trial court and Kennerly that the video was outstanding, and suggested
several remedies, including a negative inference against the Commonwealth.
Id. at 15-16. The Commonwealth asserts that dismissal was inappropriate
because the Commonwealth did not act in “deliberate, bad faith prosecutorial
misconduct,” and that Kennerly would not suffer prejudice from a less severe
remedy, such as an additional continuance. Id. at 17-19. As a result, the
Commonwealth argues that the trial court should have permitted its
eyewitness to testify as to that witness’s encounter with Kennerly in the
Verizon store, rather than dismissing the case. Id. at 19-21. Finally, the
Commonwealth asserts that the eyewitness’s tardiness at trial did not justify
dismissal, as the witness appeared at court while the proceedings were taking
place; the Commonwealth was prepared to proceed with the single witness
along with the victim; and the trial court could have elected to acquit in the
event that the Commonwealth’s witnesses did not establish Kennerly’s guilt.
Id. at 21-23.
“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
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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).
Pennsylvania Rule of Criminal Procedure 573 governs pretrial discovery
in criminal cases and provides, in pertinent part, as follows:
(B) Disclosure by the Commonwealth.
***
(2) Discretionary With the Court.
(a) In all court cases, … 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:
***
(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.
***
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(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.
Pa.R.Crim.P. 573(B)(2)(ii), (v), (E).
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). 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)
(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).
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As our Supreme Court has explained,
[d]ismissal 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 th[e Supreme] 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.
Commonwealth v. Burke, 781 A.2d 1136, 1144, 1146 (Pa. 2001)(emphasis
added and citations omitted).
Here, there was no evidence of record that the Commonwealth’s
violation was intended to provoke Kennerly into seeking a mistrial or deprive
him of a fair trial. See id. at 1146. There was also no evidence that the
Commonwealth’s actions were the result of deliberate misconduct or bad faith,
either in its failure to produce the video or in its witness’s tardiness. See N.T.,
12/12/19, at 4 (wherein the Commonwealth agrees with the trial court that
its witness should have been present when court started; the Commonwealth
and its officer had been calling the witness and the witness’s manager
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throughout the morning; and the victim had traveled to Philadelphia from his
home in Pittsburgh in order to testify). There is no evidence of record that
the video is exculpatory. See Burke, 781 A.2d at 1146 (discussing dismissal
as an inappropriate remedy when the Commonwealth failed to disclose
exculpatory evidence). Finally, Kennerly has demonstrated no prejudice,
beyond surprise, in the Commonwealth’s failure to disclose the video in a
timely fashion. See Commonwealth v. Yost, 502 A.2d 216, 219 (Pa. Super.
1985) (stating that a continuance is an appropriate remedy where the
undisclosed evidence is otherwise admissible and the defendant’s only
prejudice is surprise).
In light of the foregoing, we conclude that the trial court abused its
discretion when it dismissed the case against Kennerly based on the
Commonwealth’s failure to produce the video, rather than utilizing the
alternative remedies at its disposal under Rule 573(E).2 See Burke, supra;
Robinson, supra. Accordingly, we reverse and remand for proceedings
consistent with this memorandum.
Order reversed and remanded. Jurisdiction relinquished.
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2 We note that our ruling in this matter is not intended to bar the trial court’s
discretion to revisit the drastic sanction of dismissal, should further
proceedings reveal misconduct on the part of the Commonwealth that satisfies
the standard our Supreme Court has established in Burke.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2021
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