Com. v. McDonald, K. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYON DANE MCDONALD :
:
Appellant : No. 218 MDA 2022
Appeal from the Judgment of Sentence Entered January 4, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004040-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: NOVEMBER 13, 2023
Appellant, Kyon Dane McDonald, appeals from the judgment of sentence
of 60 to 120 months’ incarceration, imposed after a jury convicted him of
voluntary manslaughter. Appellant’s trial took place slightly more than three
years after charges were initiated, and his primary claim on appeal is that the
trial court erred by denying his motion to dismiss the charges pursuant to the
rule-based right to a speedy trial. He separately contends that the court erred
by permitting the Commonwealth’s expert witness to review video surveillance
frame-by-frame. After careful review, we affirm.
On September 27, 2018, a citizen called 911 at 2:26 a.m. to report a
shooting at Robbie Nick’s Sports Bar in Luzerne County. The victim, Tierees
Owens, was admitted to a hospital at 3:02 a.m., and pronounced dead a few
minutes later. The bar’s owner, Robbie Nicoletti, Jr., told the police that one
of his employees called him slightly before 2:30 a.m. to report a disturbance
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involving several people outside. Nicoletti, who was at another bar a short
distance away, walked back to his establishment. There, he met Owens,
whom he knew, and escorted him from the altercation. However, Owens
broke off and ran back towards the disturbance. Nicoletti heard a gunshot
and saw Appellant fire multiple additional shots.
Nicoletti related the above to investigators and provided access to his
surveillance system, which showed Appellant inside the bar at 1:43 a.m. The
video shows Appellant obtaining a gun from one of the bar’s bouncers. The
outside surveillance cameras show an altercation, and Appellant firing a
handgun multiple times at Owens. The video shows Appellant securing the
gun in his waistband and leaving. Appellant later admitted during an
interrogation that he separated the magazine from the firearm and discarded
both in a wooded area.
Pennsylvania State Troopers were called to assist, and they recovered
seven nine-millimeter casings from the scene. Two projectiles were recovered
from the pavement while the remaining five were found in Owens’ body during
an autopsy. Appellant was arrested the next day and charged with one count
of criminal homicide.
At trial, the Commonwealth sought a conviction for first-degree murder,
arguing that Appellant intentionally killed Owens while Appellant argued self-
defense. Appellant testified that, while inside the bar, Owens touched
Appellant’s wife and Appellant told him to leave her alone. Additionally, Owens
was with two other men who participated in fights that evening and generally
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caused issues that evening. Appellant testified that Owens and his friends
threatened to shoot up the bar and that, while outside the bar, Owens
displayed a gun and repeatedly threatened to kill Appellant.
Appellant was ultimately convicted of voluntary manslaughter and
sentenced on January 4, 2022, as previously stated. He filed a timely notice
of appeal and complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The trial court thereafter
filed its Rule 1925(a) opinion. Herein, Appellant states two issues for our
review:
I. Whether the trial [court] erred by not dismissing this case
pursuant to Rule 600 of the Pennsylvania Rules of Criminal
Procedure (and the Pennsylvania and United States
Constitutions)?
II. Whether the trial court erred by admitting and permitting use
of [a] frame-by-frame[,] slowed down video?
Appellant’s Brief at 5.
“In general, a trial court’s denial of a Rule 600 motion is reviewed for
an abuse of discretion; however, it is subject to plenary review when ‘the
dispositive question implicates legal issues.’” Commonwealth v. Lear, 290
A.3d 709, 718 (Pa. Super. 2023) (quoting Commonwealth v. Harth, 252
A.3d 600, 614 n.13 (Pa. 2021)). The basic principle of Rule 600 is that a full
calendar year is sufficient time for the Commonwealth to prepare the case and
bring the defendant to trial. See generally Commonwealth v. Mills, 162
A.3d 323, 324 (Pa. 2017) (holding that “time attributable to the normal
progression of a case simply is not ‘delay’ for purposes of Rule 600”). We use
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the phrase “mechanical run date” to define “the date by which the trial must
commence pursuant to the time limitations set forth in Rule 600.” Harth, 252
A.3d at 607 n.7. The mechanical run date is calculated by adding 365 days
to the date on which the criminal complaint was filed. Hence, the mechanical
run date in this case was September 27, 2019.
When, as here, the mechanical run date has been exceeded, the
defendant may seek dismissal under Rule 600. To determine whether Rule
600 is violated, our precedents formerly discussed adjustments of the
mechanical run date by designating periods of time as either “excludable” or
“excusable delay.” Commonwealth v. Malone, 294 A.3d 1247, 1248 (Pa.
Super. 2023). The former category applied to delays attributable to the
defendant or his attorneys. Those periods of time would automatically extend
the run date without any analysis of the Commonwealth’s due diligence. See
Commonwealth v. Taylor, 489 A.2d 853, 859 (Pa. Super. 1985) (explaining
that for delays “granted at the request of the defense … the Commonwealth
is not required to exercise due diligence in order to toll” the rule-based right
to a speedy trial). Excusable time described periods of delay either caused by
the Commonwealth or by circumstances outside of its control. If the
Commonwealth caused the delay, then those periods of time were chargeable
to the Commonwealth unless it acted with due diligence. In cases of judicial
delay, such as postponement of the trial due to court unavailability, the
Commonwealth must prove that it acted with due diligence. See Harth,
supra (concluding that Commonwealth’s failure to fulfill its discovery
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obligations constituted lack of due diligence; trial court unavailability for trial
irrelevant).
We have since abandoned those labels, as the “new Rule 600 eliminated
the distinction between these two buckets of removable calculable time.
Under its new verbiage, ‘periods of delay at any stage of the proceedings
caused by the Commonwealth when the Commonwealth has failed to exercise
due diligence’ forms the basis of what is known as ‘includable time.’”
Commonwealth v. Wiggins, 248 A.3d 1285, 1289 (Pa. Super. 2021) (citing
Pa.R.Crim.P. 600(C)(1)). All other periods of delay are excluded from the Rule
600 calculation. Id.We now examine the specific periods of delay. The criminal complaint
was filed on September 27, 2018, and the preliminary hearing was scheduled
for October 10, 2018. That hearing was continued at Appellant’s request to
November 16, 2018, and he was held for trial on the single count of criminal
homicide. Appellant was scheduled for formal arraignment on December 11,
2018, which was postponed at Appellant’s request to December 21, 2018, for
him to obtain counsel. On that date, Appellant was formally arraigned, and
trial was set for October 14, 2019. The Honorable Tina Gartley was assigned
to the case and set a deadline of August 2, 2019, for all pretrial motions.
Neither party filed motions by that date. For ease of discussion, the following
table lists the foregoing events and their corresponding Rule 600 implications.
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Rule 600 Includable
Event Start date End date # of days deadline time? Reason
Awaiting
preliminary Ordinary
hearing 9/27/2018 10/10/2018 13 9/27/2019 Yes progression
Preliminary
hearing Appellant
postponement 10/10/2018 11/16/2018 37 11/3/2019 No request
Awaiting Appellant
arraignment 11/16/2018 12/11/2018 25 11/28/2019 No request
Ordinary
Awaiting trial 12/11/2018 10/14/2019 307 11/28/2019 Yes progression
Using the “includable” time concept, as of the November 28, 2019 trial
date, the Commonwealth had used 320 days of the one-year period.
Presuming for the moment that the Commonwealth was prepared to go to trial
as scheduled on October 14, 2019, then the question becomes who bears
responsibility for the subsequent delays. If none of that time is includable in
the Rule 600 calculation, then Appellant’s Rule 600 rights were not violated.
For the following reasons, we conclude that all periods of time following the
initial trial listing are not included in the Rule 600 calculation.
We first turn to why the trial was postponed from October 14, 2019. On
August 6, 2019, Appellant filed a petition for a writ of habeas corpus nunc pro
tunc, noting within that the Commonwealth did not object to the untimely
nature of the motion. Petition, 8/6/19, at 1 ¶ 3 (unnumbered). Appellant
alleged that the Commonwealth presented inadequate evidence to proceed on
any type of homicide charge and requested dismissal. He further requested
“that this [c]ourt stay the deadlines, including other pre-trial motions, in this
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matter until the rest of this hearing. With all time to run against the defendant
for Rule 600 purposes.” Id. at unnumbered 5, ¶ 25.
Appellant also filed, on September 13, 2019, a request to postpone the
case as he “believes that more discovery is outstanding and will be filing a
supplemental discovery request.” Motion to Continue Trial, 9/13/19 (single
page). The trial court did not explicitly rule on this motion, perhaps due to
the pending pre-trial writ of habeas corpus motion, which was litigated on
October 10, 2019. On December 31, 2019, the trial court granted partial relief
by precluding the Commonwealth from proceeding on a second-degree
murder charge. The trial court then issued an order on February 13, 2020,
scheduling a status conference for February 21, 2020. At that conference, the
trial court noted “there’s nothing pending right now” and asked the parties if
they intended to schedule a trial date. N.T., 2/21/20, at 2. Appellant then
discussed retaining an expert:
[APPELLANT]: … There might be some motions in limine. We are
speaking with an expert witness right now. We’re going through
that process with him. It’s extensive discovery. He’s gotten it.
We’re going to have him review it. We’re preparing that now to
give to him. He hasn’t it [sic] yet.
But [co-counsel] and I have a trial in April. We believe it’s going
to be at the end of April going into May.
***
THE COURT: All right. And so I don’t know where your run date
is at, but you said you’re still involved in some discovery. What
are we looking at the most plausible time to list this? Does
Counsel have anything you are agreeable to time-wise?
[APPELLANT]: We were thinking June. Does that --
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[THE COMMONWEALTH]: June I think would be reasonable. The
only thing I would say is given the statements made by Counsel
today, the Commonwealth would make an oral motion for
reciprocal discovery of any expert reports that would be generated
in this matter.
THE COURT: So will they be done – seeing that it’s already March,
will the Commonwealth have that in a timely fashion for the
reciprocal discovery if we’re looking…
[APPELLANT]: Well, we don’t have a report yet; so I can’t -- the
day we get it, we’ll provide it. I can’t tell you for sure when that
will be.
THE COURT: Do you anticipate, like, a month, two months?
[APPELLANT]: Probably longer. Probably two months is more
realistic.
Id. at 2-4. The parties and the trial court discussed the court’s calendar and
agreed to set the trial for July 6, 2020.
We conclude that the period from October 14, 2019, to the rescheduled
date of July 6, 2020, is delay attributable to Appellant and is therefore not
included in the Rule 600 calculation. Beginning with the motion for a writ of
habeas corpus, “the mere filing of a pretrial motion by a defendant does not
automatically render him unavailable. Rather, a defendant is only unavailable
for trial if a delay in the commencement of trial is caused by the filing of the
pretrial motion.” Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999)
(footnote omitted). If litigation delays the trial, the Commonwealth must
demonstrate that it exercised due diligence in opposing or responding to the
motion. Id.We need not discuss the Commonwealth’s diligence in responding to the
motion. While the petition for a writ of habeas corpus presumably could have
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been decided prior to the scheduled trial date, Appellant specifically sought a
postponement of trial before the trial court responded to his petition seeking
dismissal of all charges.1 This postponement request is delay caused by
Appellant and is therefore solely attributable to him.
“[I]n assessing any period of delay under Rule 600, it is critical to
ascertain the cause of such delay. Stated in the most general terms, when
the Commonwealth causes delay, the Rule 600 clock continues to tick; when
the defendant causes delay, the clock stops.” Commonwealth v. Barbour,
189 A.3d 944, 958 (Pa. 2018) (emphasis in original). Appellant caused the
delay by requesting a postponement to develop pre-trial motions and consult
with expert witnesses. See Commonwealth v. McCarthy, 180 A.3d 368,
370 (Pa. Super. 2018) (concluding that defense postponements were not
included in the Rule 600 calculation); Commonwealth v. Watson, 140 A.3d
696, 699 (Pa. Super. 2016) (“[Watson] fails to develop any argument, let
alone one substantiated by authority, to advance the theory that the
Commonwealth may be held accountable for delay caused by defense
continuances. Our jurisprudence has suggested the opposite.”). Notably,
____________________________________________
1 Appellant briefly suggests that "the time between August 6, 2019[,] and
December 31, 2019[,]” should be included in the Rule 600 calculation, on the
basis that the motion for a writ of habeas corpus was partially successful.
Appellant’s Brief at 9. Appellant argues that the motion was “necessary only
because the Commonwealth insisted on keeping” a potential charge of second-
degree murder. Id. We disagree. Aside from the fact that Appellant does
not develop any argument on this point, Appellant sought complete dismissal.
Moreover, the Commonwealth’s decision to proceed on a general homicide
charge does not mean that the Commonwealth intended to pursue a second-
degree murder conviction at trial.
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there is no representation that the discovery requests were due to the
Commonwealth’s failure to fulfill its mandatory discovery obligations. In
Commonwealth v. Andrews, 213 A.3d 1004 (Pa. Super. 2019), “before the
defense requested the continuance at issue, discovery was complete and ...
trial had been scheduled for May 18, 2015.” Id. at 1013. The defense
“requested additional discovery on May 15, 2015, which required the
postponement of the trial’s commencement.” Id. We held that the delay was
attributable to the defense. The same point applies here. Discovery was
complete and Appellant’s desire to file additional motions and/or retain an
expert caused the postponement.
Briefly, we note that, while Appellant requested the postponement, the
parties did not promptly select a new date. Arguably, the period from
December 31, 2019, when the trial court granted partial relief on Appellant’s
motion, through February 21, 2020, when the trial court held a status
conference hearing, should be included in the Rule 600 calculation. As the
trial court stated at the conference, nothing was scheduled after the court
decided Appellant’s pre-trial petition for a writ of habeas corpus. This is a
period of 52 days, and Appellant would prevail as adding this total to the 320
days already included exceeds one year.2
____________________________________________
2 We express no opinion on whether the fact that Appellant sought a
postponement in September affects the calculation of the Mills “normal case
progression” test.
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It would have been preferable for the Commonwealth to request that
the court schedule the case for trial following resolution of the motion, and it
is not clear why almost two full months elapsed between deciding the habeas
corpus motion and scheduling a new trial date. Notwithstanding, the record
establishes that Appellant was not prepared to proceed to trial. Appellant
specifically stated in his September motion to postpone the first trial date that
more time was needed:
2. [Appellant] file[d] a Writ of Habeas Corpus and has a hearing
on this matter on September 19, 2019.
3. Following the hearing, [Appellant] believes that more discovery
is outstanding and will be filing a supplemental discovery request.
4. [Appellant] would respectfully request a continuance in this
matter with a pending Habeas before this [c]ourt and more
discovery to commence following the hearing.
5. [The Commonwealth] concurs in this motion to continue.
Motion to Continue Trial, 9/13/19, at unnumbered 1.
Thus, while it would have behooved the Commonwealth to ensure that
a trial date was selected in conjunction with the pre-trial habeas hearing or
shortly after the motion was decided, Appellant had yet to file the motions
referenced in his request for a postponement. Appellant asked the court for
a continuance “and more discovery” to follow the hearing. As far as the record
indicates, Appellant and the Commonwealth were informally addressing those
issues. Therefore, the period from the day Appellant’s writ of habeas corpus
was decided through the rescheduled July 6, 2020 trial date is attributable to
Appellant.
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We now turn to the postponement of the July 6, 2020 trial date, which
was prompted by judicial orders regarding the COVID-19 pandemic. On March
16, 2020, the Supreme Court of Pennsylvania issued an order authorizing
president judges to suspend Rule 600. See In re Gen. Statewide Jud.
Emergency, 228 A.3d 1281 (Pa. 2020). Luzerne County President Judge
Michael T. Vough issued several orders pursuant to this authority, as discussed
infra.
We conclude that the period from July 6, 2020 through the rescheduled
November 16, 2020 trial date is excluded from the Rule 600 calculation due
to court unavailability. In Commonwealth v. Carl, 276 A.3d 743 (Pa. Super.
2022), appeal denied, 292 A.3d 839 (Pa. 2023), we held that the period of
delay due to an unambiguous suspension of Rule 600 during the COVID-19
emergency is not included in the Rule 600 calculation, and we do not consider
the Commonwealth’s due diligence obligations during those closures. The
pertinent order in Carl provided, “in relevant part, that ‘[d]uring the
emergency, the following shall apply: ... (3) Suspend statewide rules
pertaining to the rule-based right of criminal defendants to a prompt trial.’”
Id. at 747 (quoting order). Conversely, in Commonwealth v. Lear, 290
A.3d 709 (Pa. Super. 2023), appeal granted in part, 2023 WL 6416182 (Pa.
2023), this Court remanded for a hearing on the Commonwealth’s exercise of
due diligence during a time in which the courts were unavailable for trial due
to COVID-19, because the relevant emergency order did not suspend Rule 600
and merely stated that the delay “shall be considered a court postponement
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and shall constitute excludable time” for Rule 600 purpose. Id. at 720(quoting order).
The orders contained in the record here likewise do not unambiguously
suspend Rule 600 due to COVID-19 for the entire at-issue timeframe from
July 6, 2020 through November 16, 2020. The first order “suspends the
operation of Rule … 600 during the time period of the judicial emergency
concluding April 14, 2020 unless extended by further [o]rder of [c]ourt.”
Order, 3/17/20 (unnumbered). On April 2, 2020, President Judge Vough
extended that order through April 30, 2020. On May 29, 2020, an order was
issued stating that Rule 600 “is suspended until September 14, 2020 subject
to any intervening orders.” Order, 5/29/20.3 The order unambiguously
suspends Rule 600 from March 17, 2020, through April 30, 2020, and then
from May 29, 2020 through September 14, 2020. Because there is a gap from
April 30, 2020 through May 29, 2020, we will assume for purposes of our
disposition that the holding in Lear applies. For ease of disposition, we will
defer discussion of the Commonwealth’s due diligence until after a review of
all the delays.
In any event, at minimum, the courtrooms were unavailable for any jury
trials. The order directed that “[a]ll jury trials are hereby postponed pending
further Order of the [c]ourt.” Order, 3/17/20, at unnumbered 2 (emphasis
____________________________________________
3 These are the only orders included in the record. It is not clear what other
orders, if any, were issued to address the gap between April 30, 2020 and
May 29, 2020.
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added). The impossibility of holding a jury trial due to COVID-19 constitutes
a judicial delay outside of the Commonwealth’s control. As we have previously
observed, “[i]t certainly would not serve the dual purpose of Rule 600 if a
defendant could demand a jury trial (as is their constitutional right) during a
time when it is impossible for the Commonwealth to conduct a jury trial, and
determine that the resulting delay was not excusable under the Rule.”
Commonwealth v. Faison, 297 A.3d 810, 824 (Pa. Super. 2023).
Next, we discuss the postponement of the November 16, 2020 trial date.
Trials were initially set to resume in Luzerne County in September of 2020.
On November 23, 2020, the president judge ordered a second closure,
specifying that “only civil and criminal proceedings which directly impact the
health, safety, security, welfare or incarceration of an individual shall be held
as would normally be scheduled. All other proceedings shall be postponed to
a later date.” Order, 11/23/20, at unnumbered 1. This order was effective
through January 4, 2021; an order issued December 28, 2020, extended the
order through February 26, 2021.
Briefly, we note that the November 16, 2020 trial theoretically could
have taken place if jury trials had resumed, as the second emergency order
was issued one week later. Appellant, however, requested a postponement.
The trial court was not idle following the March 17, 2020 emergency order,
and the record establishes that the parties worked with an eye towards
commencing trial upon expiration of the original emergency in September. A
conference was held on May 5, 2020, which resulted in the November 16,
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2020 date. The trial court entered an order on August 26, 2020, scheduling
a conference for September 4, 2020. Additionally, on September 9, 2020,
Judge Gartley recused, and the case was reassigned to the Honorable David
W. Lupas.4
On November 2, 2020, Judge Lupas issued an order rescheduling the
status conference for December 7, 2020, thus postponing the November 16
trial date. While the order itself does not indicate that Appellant requested
this postponement, the trial court’s opinion states that it was at his request.
Trial Court Opinion (“TCO”), 10/4/22, at 8 (“[Appellant] successfully sought
to reschedule the November 2, 2020 status conference and it became clear
that his trial was not going to occur on November 16, 2020.”). We treat this
as a factual finding that is supported by the record. Because Appellant
requested that his trial be postponed, those delays are attributable to him.
This leads to the selection of a new trial date after jury trials resumed
in late February of 2021. For the same reasons discussed supra, the
subsequent rescheduling of the trial due to the second emergency COVID-19
order constitutes judicial delay which is not included in the Rule 600
calculation. As the trial court’s opinion states, following the expiration of the
second emergency order, “the [c]ourt began the task of recalendaring all the
cases that had been continued due to the various state and county COVID[-
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4 Appellant argues that the delay caused by recusal should be included in the
Rule 600 calculation, as the recusal was apparently due to the assignment of
an assistant district attorney. Appellant does not develop this argument, and
we will not consider it.
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19] emergency orders issued from the inception of the crisis in March of 2020.”
Id. at 10. There is no suggestion that the trial court was required to prioritize
Appellant’s case to the exclusion of others, each of which may have had their
own Rule 600 issues. Accordingly, the postponements due to COVID-19 are
not included in the Rule 600 calculation.
The foregoing addresses all periods of delay up through the first listing
after the COVID-19 closures ended. The final period of delay involves the
postponements through the actual trial in October of 2021.
Judge Lupas held a status conference on April 12, 2021. At this
juncture, Appellant’s comments regarding an expert witness at the February
21, 2020 status conference become relevant. Recall that Appellant requested
a postponement in September of 2019 for an expert witness to review the
material. The Commonwealth then made an oral motion for reciprocal
discovery. The trial court did not rule on the Commonwealth’s motion as
Appellant volunteered to supply the report. See N.T., 2/21/20, at 4
(Appellant’s counsel stating, “Well, we don’t have a report yet; so I can’t --
the day we get it, we’ll provide it. I can’t tell you for sure when that will be.”).
Appellant decided not to supply the report. At the April 12, 2021 status
conference, the Commonwealth informed the court that the parties had been
informally discussing the issue. The Commonwealth stated, “[Appellant’s
counsel] did indeed receive that report, but they are of the opinion that they
do not have to provide it to the Commonwealth.” N.T., 4/12/21, at 2.
Appellant replied that the expert report was not yet finalized but confirmed
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that he no longer intended to provide the Commonwealth with the report.
Appellant explained that, per his interpretation of Rule of Criminal Procedure
573, the Commonwealth was entitled to his expert report only if Appellant had
requested expert reports from the Commonwealth. Appellant did not request
expert reports in his discovery motions, and he thus argued that he did not
have to provide the report.
The Commonwealth responded that, “up until I would say four days ago
when I spoke to [Appellant’s counsel,] everyone was under the assumption
that it would be provided so we could get our own expert.” Id. at 7.
Appellant’s counsel stated, “I was wrong on the Rule. I was wrong.” Id. at
8. The Commonwealth then orally requested that the trial judge compel
disclosure of the expert report. The court overruled Appellant’s objection and
ordered him to supply the report by June 15, 2021. Appellant’s trial was set
for July 26, 2021.
Appellant failed to timely send the report, as established at a status
conference held on July 6, 2021. Appellant stated at this conference that he
had sent the expert report to the Commonwealth on June 30, 2021, and the
Commonwealth stated that it “need[ed] additional time to hire an expert to
review their expert report.” N.T., 7/6/21, at 2. Appellant objected to a
continuance, stating that he was prepared to try the case. Appellant argued
that the Commonwealth had sufficient time to consult an expert before trial.
The trial court stated that because the report has “just been disclosed and
provided basically on the eve of the trial date, I don’t see any alternative but
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to continue the trial date because of that.” Id. at 4. The trial court moved
the trial date to October 25, 2021.
Appellant asked that the time be counted against the Commonwealth.
The trial court denied this request, stating that the time would count against
Appellant due to “the lateness and the provision of the report, which required
the [c]ourt to order its disclosure, [at that is what was] causing the delay.”
Id. at 4-5. The Commonwealth also stated that, depending on its review of
Appellant’s report and consultation with an expert, it may file motions to
exclude and/or challenge the admissibility of the evidence. The trial court
stated that it would order another status conference in about a month.
That conference, the final one in this case, took place on August 6, 2021,
and the Commonwealth informed the court that it was conferring with a
possible expert. Additionally, the Commonwealth requested to postpone the
case for the affiant to teach a class for the Pennsylvania State Police. The trial
court denied that request, stating that the court had homicide trials scheduled
for September and October, which “is why I chose October for this one, not to
mention all of the other criminal trial weeks that we have with other trials that
are scheduled.” N.T., 8/6/21, at 5. Jury selection commenced October 22,
2021.
We conclude that all delays following the expiration of the second COVID
order are not included in this Rule 600 calculation. Appellant’s argument
concerning this block of time is that the trial court erred in ordering Appellant
to disclose his expert report, which led to the postponements. Initially, we
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note that Appellant does not separately challenge the trial court’s order to
disclose the report, instead addressing the validity of that order within his Rule
600 argument. In short, Appellant offers that the Commonwealth, despite
prevailing in its motion to compel disclosure, should have this time counted
against it.
We will accept arguendo that we may review the discovery order in
conjunction with the Rule 600 argument, especially because the discovery
order itself is arguably moot in that Appellant did not end up calling his expert
witness. See Commonwealth v. Holt, 273 A.3d 514, 549 (Pa. 2022)
(deeming moot a claim that trial court erred by ordering capital defendant to
turn over a mitigation specialist’s report because the defendant did not call
the witness). Presently, Appellant asserts that the trial court abused its
discretion in granting the Commonwealth’s discovery motion, and, in turn,
delaying the trial for Appellant to comply with that request.
We conclude that the trial court did not err in counting the time against
Appellant. As the Rule 600 determination is based on the discovery issue, we
first begin with the relevant provisions of Rule 573:
(C) Disclosure by the Defendant.
(1) In all court cases, if the Commonwealth files a motion for
pretrial discovery, upon a showing of materiality to the
preparation of the Commonwealth’s case and that the request is
reasonable, the court may order the defendant, subject to the
defendant’s rights against compulsory self-incrimination, to allow
the attorney for the Commonwealth to inspect and copy or
photograph any of the following requested items:
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(a) results or reports of physical or mental examinations,
and of scientific tests or experiments made in connection
with the particular case, or copies thereof, within the
possession or control of the defendant, that the defendant
intends to introduce as evidence in chief, or were prepared
by a witness whom the defendant intends to call at the trial,
when results or reports relate to the testimony of that
witness, provided the defendant has requested and received
discovery under paragraph (B)(1)(e); and
(b) the names and addresses of eyewitnesses whom the
defendant intends to call in its case-in-chief, provided that
the defendant has previously requested and received
discovery under paragraph (B)(2)(a)(i).
(2) If an expert whom the defendant intends to call in any
proceeding has not prepared a report of examination or tests, the
court, upon motion, may order that the expert prepare and the
defendant disclose a report stating the subject matter on which
the expert is expected to testify; the substance of the facts to
which the expert is expected to testify; and a summary of the
expert’s opinions and the grounds for each opinion.
Pa.R.Crim.P. 573.
Appellant’s textual argument is straightforward: per Rule 573(C)(1)(a)
the Commonwealth may seek, inter alia, expert reports so long as the
defendant has requested and received discovery under Rule 573(B)(1)(e),
which requires the Commonwealth to disclose, upon request, expert opinions
within the control of the Commonwealth. Appellant did not request those
materials. Additionally, Rule 573(C)(2), while providing an independent basis
for disclosure upon the Commonwealth’s request, refers to an expert who has
not prepared a report, and here the expert was in the process of preparing
one. Accordingly, Appellant argues that there was no textual basis to order
discovery.
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However, a case from our Supreme Court has held that, even in the
absence of reciprocal discovery, the trial court does not per se abuse its
discretion in ordering the defense to turn over expert reports to the
Commonwealth. In Commonwealth v. Faulkner, 595 A.2d 28 (Pa. 1991),
Faulkner filed a motion to retain psychiatric experts, which was granted.
However, he refused to meet with the Commonwealth’s psychiatrist. As a
result, “the trial court required [Faulkner] to reduce the opinions of the experts
to writings and provide them to the court and the prosecutor.” Id. at 35. On
appeal, Faulker alleged “that it was error for the court to order [him] to turn
over to the prosecution the experts’ reports before trial, without requiring the
prosecution to engage in reciprocal discovery.” Id. at 37. The Court
disagreed, explaining:
For two reasons, this argument fails. First, [Faulkner] refused to
be examined by the prosecution’s psychiatric expert prior to trial.
As such, the prosecution did not have any reciprocal discovery to
turn over to the appellant. Second, Rule 305(C)(2)[5] of the
Pa.R.Crim.P. provides that:
[I]f the Commonwealth files a motion for pretrial discovery,
the court may order the defendant … to allow the …
Commonwealth to inspect and copy … upon a showing of
materiality to the preparation of the Commonwealth’s case
and that the request is reasonable: (a) results or reports of
physical or mental examinations … which the defendant
intends to introduce as evidence in chief, or which were
prepared by a witness who the defendant intends to call at
the trial….
____________________________________________
5 The Rule has since been renumbered. The quoted text is substantively
similar to the current text.
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[Faulkner] has made no argument establishing that the trial judge
abused his discretion in ordering him to turn over the pretrial
reports of his expert witnesses. Rather, given the facts of this
case, the trial judge’s rulings were reasonable. See,
Commonwealth v. Logan, … 549 A.2d 531 ([Pa.] 1988). … In
the instant case, [Faulkner] refused to submit to a psychiatric
examination and the prosecutor had a much stronger need to
know the substance of the psychiatric experts[’] testimony.
Id. (emphasis in original).
Both reasons also apply here. As in Faulker, the Commonwealth did
not possess any expert reports concerning the justifiable use of self-defense.
In most cases, the subject of a defense expert report will be addressing an
issue already raised by the Commonwealth, e.g., a competing DNA expert.
The Commonwealth did not initially intend to call an expert witness on the
justifiable use of force in its case-in-chief and thus had no reciprocal obligation
to fulfill. The Faulkner Court effectively read the rule to mean that the
reciprocal discovery condition applies only when the Commonwealth has its
own report to provide.
Next, the Commonwealth requested discovery on the grounds that it
needed to know what Appellant’s expert would say so that it could consult
with its own expert witnesses. Thus, as in Faulker, the Commonwealth
claimed a need to know what that testimony would entail. We conclude that
the trial court did not abuse its discretion in crediting the Commonwealth’s
reason for wanting the report. Appellant’s expert was in the process of
finishing a report and Appellant indicated that the expert may testify at trial.
The court’s discovery order not only permitted the Commonwealth to consider
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its options in terms of retaining its own expert, but it also ensured that the
Commonwealth would be able to raise objections if the expert’s testimony
exceeded the scope of his review. Cf. Commonwealth v. Roles, 116 A.3d
122, 131–32 (Pa. Super. 2015) (“Although there are no rules of procedure in
criminal cases precisely governing expert reports, it cannot be asserted that
either the Commonwealth or a defendant has carte blanche to allow an expert
to testify beyond the information contained in his or her report. To hold
otherwise would eviscerate the requirement that reports be disclosed.”). In
this regard, we find that the intersection of this discovery ruling with the Rule
600 issue implicates the dual purpose of Rule 600.
Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those contemplating
it. However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en
banc).
In this context, we conclude that the “effective prosecution of criminal
cases” includes consideration of the Commonwealth’s need to review the
material. Permitting Appellant to call the expert without affording the
Commonwealth the opportunity to explore the issue would hamper the
Commonwealth’s ability to present its case on behalf of the citizens it
represents. We do not diminish the effect of delaying the case further,
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especially where the matter had been postponed due to COVID-19. Still,
Appellant’s role in causing delay cannot be overlooked. He had already agreed
to provide the report on an informal basis, and the Commonwealth was
entitled to rely on that representation. Appellant later determined that he
should not have agreed to supply the report, and then claimed that trial should
proceed solely because he was ready. His change of heart was not conveyed
to the Commonwealth or the trial court until close to trial. At that point, the
Commonwealth understandably sought disclosure, as its own trial preparation
was premised on the understanding with Appellant’s attorneys that the report
would be provided.
In concluding that the trial court did not abuse its discretion in requiring
Appellant to furnish the report, it follows that the trial court did not err in
attributing the delays to Appellant. Accordingly, the combination of the
COVID-related closures, and the subsequent delays in commencing trial, are
all excluded from the Rule 600 calculation.
We now address the Commonwealth’s due diligence obligations. While
many of the delays are attributable to Appellant, the COVID-19 closures
present a different consideration. Per Lear, we will assume that the
emergency orders did not unambiguously suspend Rule 600 during the entire
period of the judicial emergency. Thus, these closures qualify as judicial
delay, but the Commonwealth must show that it acted with due diligence. We
conclude that it did.
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The decision in Harth, supra, establishes that the fortuity of a court
postponement cannot benefit the Commonwealth. Consider the following
example. The Commonwealth has listed a case for trial one day before the
expiration of the mechanical run date, and none of the time is attributable to
the defendant. Assume that the Commonwealth is utterly unprepared for trial,
has failed to provide discovery, and did not subpoena any of its witnesses.
The Commonwealth prepares a postponement form, hoping that the
defendant will simply neglect to file a motion to dismiss when the case is
relisted for trial. The trial court, however, suddenly declares that the
courtroom is unavailable, forcing a postponement. Prior to Harth, the
prosecution has been saved by sheer luck. Harth changes that. The Court
adopted Justice Wecht’s concurring opinion in Mills, supra, which
summarized the point as follows:
“Judicial delay” is not a mechanism or totem that exempts the
Commonwealth from its obligations under the Rule. It may be
invoked only after the Commonwealth has demonstrated that it is
ready, able, and willing to proceed with the case against the
defendant. Otherwise, the due diligence component of Rule 600
would have little, if any, meaningful import.
Mills, 162 A.3d at 326–27 (Wecht, J., concurring). The Harth Court adopted
this view, and thus the Commonwealth must exercise due diligence
throughout the entire case.
This is not a Harth situation. In that case, the prosecution had failed
to provide discovery throughout the case. “The Commonwealth provided no
explanation with respect to its failure to disclose discovery throughout the life
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of the case or, more specifically, regarding its failure to provide the defense
with the 15 new exhibits which triggered [Harth]’s second Rule 600 motion on
the morning of trial.” Harth, 252 A.3d at 606. Both Harth and Justice
Wecht’s concurrence in Mills focus on whether the Commonwealth was
otherwise prepared to go to trial if the delays had not occurred. Appellant
cites to no comparable inability of the Commonwealth to proceed to trial as
scheduled but for the postponements, and the record establishes that the
unavailability of the courtrooms due to COVID-19 closures had no bearing on
the Commonwealth’s readiness for trial.
In arguing to the contrary, Appellant focuses on the fact that the
Commonwealth called an expert witness in its case-in-chief but did not consult
with that expert until long after the Rule 600 period would have expired. Thus,
the argument goes, the Commonwealth failed to act with due diligence
because the prosecution could have spoken to an expert well before that time.
We are not persuaded by this argument. The salient point in time, in
our view, is the first trial listing in October of 2019. If the Commonwealth had
been prepared to go to trial at that date, then it acted with due diligence. As
stated in Harth, the Commonwealth’s due diligence obligation is to be ready
for trial within one year:
We do not suggest that the Commonwealth must be prepared to
proceed to trial the moment that a criminal case is initiated;
rather, the Commonwealth must utilize that year to prepare itself
for trial, as is required under Rule 600(A). We have not altered
that timeline, but, instead, seek merely to ensure that the
Commonwealth does not summarily rely upon the judiciary as an
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excuse to forego preparation for pending criminal cases,
consistent with the language and purpose of Rule 600.
Id. at 618 n.15.
The Commonwealth utilized the first 365 days to get ready for trial and
nothing indicates that the Commonwealth was unprepared to go to trial on the
first trial listing, which was postponed at Appellant’s request. All subsequent
postponements were solely attributable to Appellant or were due to COVID-
19. The fact that the Commonwealth ended up using additional evidence that
it could not have presented if trial had occurred as originally scheduled does
not mean that it was unprepared to go to trial at an earlier point in time. It
simply means that, had the trial proceeded as scheduled, the Commonwealth
would not have presented whatever additional evidence it uncovered in the
interim. Appellant does not explain why the Commonwealth should be
precluded from conducting additional investigations during periods of delay
that it did not cause.
Furthermore, Appellant’s argument ignores his own representations to
the Commonwealth that he would supply the prosecution with his expert
report. The Commonwealth may well have decided that consulting an expert
was not warranted until it read the material Appellant was ordered to disclose.
“Due diligence is fact-specific, to be determined case-by-case; it does not
require perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort.” Commonwealth v.
Selenski, 994 A.2d 1083, 1089 (Pa. 2010). Under the specific facts of this
case, where Appellant agreed on-the-record to provide his expert report to
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the Commonwealth, we agree with the trial court that “the Commonwealth
acted with due diligence to bring [Appellant] to trial throughout the lifetime of
this case.” TCO at 4. The trial court therefore did not err in denying the Rule
600 claim.6
Appellant’s second issue addresses the introduction of exhibits during
the testimony of the Commonwealth’s expert witness on the use of force,
Corporal Kevin Selverian. Corporal Selverian testified that he used the
software program Input-Ace to examine the video surveillance. That software,
among other things, allows the viewer to “examine [video] frame-by-frame
for a particular detail associated with the events we’re looking at.” N.T.,
10/27/21, at 733. The Commonwealth then asked the witness to narrate his
frame-by-frame review of the video surveillance by referencing exhibits the
expert had prepared.
Appellant objected, stating that those exhibits “ha[ve] not been
provided” in discovery. Id. at 734. The Commonwealth argued that the
exhibits were demonstrative in nature and “not different than if I had this
witness mark a photo that’s already been provided” in discovery. Id. at 735.
The Commonwealth stated that the exhibits were based on the underlying
____________________________________________
6 Appellant also argues that his constitutional right to a speedy trial was
violated. See Barker v. Wingo, 407 U.S. 514 (1972). As the trial court
noted, Appellant did not make any constitutional claim in his motion to
dismiss, and his constitutional arguments are thus waived. See
Commonwealth v. Stokes, 421 A.2d 240, 245 n.7 (Pa. Super. 1980)
(finding a constitutional speedy trial claim waived due to Stokes’ failure to
raise it at trial court level).
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video surveillance, which were disclosed in discovery. Appellant responded
that the exhibits were not demonstrative because “the video was put in a
specialized program to break it down[.]” Id. Appellant stated that he did not
object to playing the surveillance videos, but rather “to the frame by frame by
frame, which I haven’t been provided.” Id. at 736. The trial court stated,
“Whatever objection is being made is overruled. It’s the same exhibit that’s
already been entered.” Id.
“Generally, evidence is admissible if it is relevant and competent. This
basic rule is equally applicable to the admission of photographs, as well as
other types of demonstrative evidence.” Commonwealth v. Hudson, 414
A.2d 1381, 1386 (Pa. 1980). Appellant’s substantive argument relies on
Kopytin v. Aschinger, 947 A.2d 739 (Pa. Super. 2008), and the portion of
Kopytin approvingly quoting the Commonwealth Court’s opinion in Robert
Hawthorne, Inc. v. W.C.A.B. (Stone), 460 A.2d 911 (Pa. Cmwlth. 1983).
We conclude that these precedents are not on point.
Both cases involve the introduction of videotapes to show that a person
was not disabled. In Kopytin, the plaintiff sought medical expenses for
injuries suffered during an automobile accident. The defense introduced 16
minutes of surveillance footage, which showed the plaintiff carrying heavy
bags of groceries. Kopytin, 947 A.2d at 742. The plaintiff argued that the
evidence should not have been introduced because, inter alia, “the edited
version of the tape was misleading, and … it was produced one day before
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trial,” which did not permit sufficient time “to prepare a cross-examination as
to the differences between the edited and unedited versions.” Id. at 748.
We agreed that the excerpted video was potentially misleading,
approvingly quoting Hawthorne. In that case, the videotape in question was
introduced to establish that an individual was not disabled. The videotape
showed the person “doing housework, yardwork and indicating that the
claimant was capable of moving his head from side to side. The claimant then
admitted that he had engaged in most of the activities depicted on these films,
but he insisted that he remains disabled.” Hawthorne, 460 A.2d at 911–12.
The Commonwealth Court remarked, “we have recognized that a short
sequence of film taken after a lengthy period of surveillance often can distort
the true nature of an individual’s injury, and is thus of questionable value as
evidence.” Id. at 912 (citation omitted).
It appears from the opinions in both decisions that the full video was
not otherwise admitted, only the edited portions. That selective editing
created the misleading impression. That is a significant distinction from this
case, as Appellant had access to all surveillance videos and indeed relied on
those videos to support his self-defense claim. The expert’s testimony did not
rely on a substantive edit or modification of the underlying surveillance videos.
This is not a case where the expert used forensic tools to “clean up” audio
recordings to make certain conversations less garbled or used software to
digitally enhance video. In such a case, we would agree that the modified
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material would have to be disclosed to the defense to properly prepare for
trial.
That distinction aside, Appellant has waived any argument that a frame-
by-frame presentation is misleading. Appellant’s argument at trial had
nothing to do with the admission of the evidence in terms of relevance and
more with whether the material should have been disclosed in discovery. On
appeal, Appellant submits that the trial court erred in failing to balance the
probative value of the material against the prejudicial value, as the video
“made it appear as if [Appellant], during each 1/15 of a second, made choices
or could have made different choices.” Appellant’s Brief at 66. The
Commonwealth responds on the merits, and, alternatively, that any error in
the admission of the exhibits was harmless beyond a reasonable doubt.7
____________________________________________
7 Appellant has filed an application to strike the Commonwealth’s brief.
Appellant elected to proceed under Pa.R.A.P. 2154(b) (dealing with large
records), thus deferring preparation of the reproduced record until after the
briefs have been served. Per Pa.R.A.P. 2187(b)(3), the parties were required
to serve each other with advance briefs. Appellant’s application to strike noted
that the Commonwealth’s advance brief materially differed from the brief filed
with this Court, and requested that we strike the Commonwealth’s brief.
In its reply, the Commonwealth concedes that its final brief added
approximately 10 pages to the advance brief sent to Appellant. The
Commonwealth explains that the attorney who filed the advance brief left the
office before the final brief was filed, and the current Assistant District
Attorney explained that the added material developed a harmless error
argument which had been omitted by the former attorney. We do not address
the Commonwealth’s harmless error argument and deny the application to
strike.
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We conclude that Appellant has waived any claim that the frame-by-
frame presentation was misleading. “[A] theory of error different from that
presented to the trial jurist is waived on appeal, even if both theories support
the same basic allegation of error which gives rise to the claim for relief.”
Tong-Summerford v. Abington Mem'l Hosp., 190 A.3d 631, 649 (Pa.
Super. 2018) (quotation marks and citation omitted). Appellant’s objection
at trial, as quoted supra, did not suggest to the trial court that the frame-by-
frame analysis was misleading in the manner now argued on appeal. See
N.T., 10/29/21, at 736 (“If they’re using it, I should have been provided it.
That’s basic discovery.”).8 His objection was limited to the Commonwealth’s
failure to alert him ahead of time of its intention to have the expert review the
video frame-by-frame.9 We thus conclude that Appellant did not preserve a
claim that the frame-by-frame analysis was so misleading that the evidence
should have been excluded on that basis.10
____________________________________________
8 Appellant also argues that the evidence was not authenticated. This claim
has been waived as Appellant did not cite authentication as a basis to exclude
the exhibits. Moreover, it is difficult to see how Appellant could argue that the
underlying videos are not authentic as Appellant likewise relied on the videos
to support his self-defense claim.
9 The jury requested to see the frame-by-frame analysis during deliberations.
Appellant did argue at that point that the jury should not be shown the exhibits
because the frame-by-frame breakdown was misleading and more prejudicial
than probative, but that objection came far too late to preserve the issue for
appeal.
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/13/2023
____________________________________________
10 In Commonwealth v. Hindi, 631 A.2d 1341 (Pa. Super. 1993), the trial
court denied a defendant’s request to slow down a video. We stated:
In a sense, all slow motion and freeze frame video distorts reality.
It distorts it in the same way that magnification of a photograph
distorts reality. Such distortion may enhance the jury’s
understanding or it may do the opposite. It is the function of the
trial court, as was done in this case, to view the evidence in
camera. If the judge concludes that the jury’s understanding will
be enhanced and that the slow motion or freeze frame is more
probative than prejudicial, then the judge should admit the
evidence. Of primary relevance is the purpose for which the party
offers a slow motion or freeze frame version of a videotape.
Id. at 1345.
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