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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LEROY MALDONODO
Appellee No. 1191 EDA 2015
Appeal from the Order Entered March 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003453-2014
BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JULY 14, 2016
The Commonwealth appeals from the March 25, 2015 order granting
the motion for discovery sanctions filed by Appellee, Leroy Maldonodo. After
careful review, we affirm.
We summarize the relevant factual and procedural history of this case
as follows. On April 2, 2014, the Commonwealth filed an information,
charging Appellee with two counts each of robbery, theft by unlawful taking,
possession of an instrument of a crime, terroristic threats, and simple
assault.1 As part of discovery, Appellee sought disclosure of, inter alia, any
electronic surveillance and transcripts thereof. Appellee’s First Motion for
Discovery Sanctions, 2/8/15, Exhibit 1, at 2. On February 8, 2015, Appellee
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 907(a), 2706(a)(1), and 2701(a),
respectively.
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filed a motion for discovery sanctions, specifically alleging the
Commonwealth failed to timely turn over 466 prison phone call recordings of
Appellee, which were in Spanish. On February 10, 2015, after hearing
argument, the trial court denied Appellee’s motion for sanctions, but granted
a continuance to permit the Commonwealth the opportunity to translate the
prison tapes to English. Relevant to this appeal, the Commonwealth told the
trial court that “in the meantime, [it would] have these tapes officially
transcribed by a certified translator, not from the court, and provide a copy
to [defense c]ounsel[.]” N.T., 2/10/15, at 21. Based on this promise, the
trial court stated the translated transcripts “have to be passed [to defense
counsel] three weeks prior to trial because [it] want[ed] to make sure there
[was] enough time for the transcription to be completed and done right so
that [defense counsel could] review it.” Id. at 22. The trial court set a new
listing date of April 7, 2015. Id. at 23. The docket contains an entry listing
an “Order Granting Motion for Continuance,” which stated, relevant to this
appeal, that the “Commonwealth [was] to get prison calls transcribed and
passed to [d]efense 3 weeks prior to trial.” Trial Court Docket at 6.
On March 20, 2015, Appellee filed another motion for discovery
sanctions, alleging that the Commonwealth had not complied with the trial
court’s previous order. On March 25, 2015, the trial court heard argument
on Appellee’s motion, and entered an order granting the motion and
precluding the Commonwealth from introducing the prison tapes into
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evidence at trial. The Commonwealth filed a motion for reconsideration on
April 1, 2015, which the trial court denied on April 10, 2015. On April 24,
2015, the Commonwealth filed a timely notice of appeal.2
On appeal, the Commonwealth raises one issue for our review.
Did the trial [court] abuse its discretion in
suppressing audio recordings of [Appellee]’s
telephone calls made in prison unless the
Commonwealth also translated the calls from
Spanish to English and created translated transcripts
of the recorded statements?
Commonwealth Brief at 4.
The Commonwealth argues that the trial court erred in several
respects. Succinctly, the Commonwealth avers that the trial court’s
February 10, 2015 order does not direct it to transcribe all 466 tapes, rather,
it directs the transcription of only two of them. Commonwealth’s Brief at 11.
The Commonwealth also claims that its representations resulting in said
order do not constitute a binding agreement. Id. at 12. Moreover, the
Commonwealth states that even if such an agreement did exist, it
substantially complied when it turned over partial transcriptions by police
detectives. Id. at 11. Finally, the Commonwealth argues that the trial
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2
The Commonwealth certified in its notice of appeal that the trial court’s
order would substantially handicap its prosecution pursuant to Pennsylvania
Rule of Appellate Procedure 311(d). Concurrently with its notice of appeal,
the Commonwealth filed a concise statement of errors complained of on
appeal pursuant to Rule 1925(b), although the trial court had not ordered it
to do so. The trial court issued its Rule 1925(a) opinion on September 17,
2015.
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court’s sanction of exclusion was disproportionate, and that an additional
continuance was warranted. Id. at 16-17.
At the outset, we note, “we review a trial court’s order awarding
sanctions under an abuse of discretion standard.” Commonwealth v.
Jordan, 125 A.3d 55, 65 (Pa. Super. 2015) (en banc) (citation omitted).
Pennsylvania Rule of Criminal Procedure 573(B)(1)(g) requires that the
Commonwealth turn over to the defense, upon its request “the transcripts
and recordings of any electronic surveillance, and the authority by which the
said transcripts and recordings were obtained.” Pa.R.Crim.P. 573(B)(1)(g). 3
Furthermore, Rule 573(E) permits the trial court to grant a motion for
sanctions.
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
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3
We reject the Commonwealth’s assertion that recorded prison phone calls
are not “electronic surveillance” under Rule 573(B)(1)(g) and that
“[Appellee] had equal access to the prison recordings.” Commonwealth’s
Brief at 17; see also Commonwealth v. Hanford, 937 A.2d 1094, 1100
(Pa. Super. 2007) (discussing Rule 573(B)(1)(g) in the context of a
“telephone conversation with a defense witness, recorded while he was in
jail prior to trial[]”), appeal denied, 956 A.2d 432 (Pa. 2008). Hanford also
rejected the arguments forwarded by the Commonwealth that Rule 573 was
not violated because the defendant was “advised that [his] calls [were]
being recorded[]” and because “the defendant [was] aware of the material in
question[.]” Id. at 1101.
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other order as it deems just under the
circumstances.
Pa.R.Crim.P. 573(E). Concerning the form of any relief to be granted, our
cases have held that Rule 573(E) contains a requirement of proportionality.
That is to say, “the remedy in the criminal proceeding is limited to denying
the prosecution the fruits of its transgressions.” Jordan, supra, quoting In
re York Cnty Dist. Attorney’s Office, 15 A.3d 70, 73 (Pa. Super. 2010).
We first address the Commonwealth’s assertion that it only offered to
transcribe the two tapes it intended to introduce, not all 466 tapes.
Commonwealth’s Brief at 9. Conversely, the trial court’s opinion appears to
indicate that it believed the Commonwealth volunteered to translate all 466
tapes, and that such transcription was required by its directive. Trial Court
Opinion, 9/17/15, at 4-5.
At the February 10, 2015 hearing, the Commonwealth informed the
trial court and Appellee it had 466 phone call recordings in its possession,
and gave Appellee a partial transcription, made by the assistant district
attorney (ADA), so that Appellee could “know exactly what [was] on the two
phone calls that [it] wanted to introduce.” N.T., 2/10/15, at 15. At the
hearing on Appellee’s initial motion for sanctions, the following exchange
occurred.
The Court: Okay. At this time I am going to deny
[Appellee’s] sanctions motion, and I will allow you a
continuance so that you can have time to review the
tapes.
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…
[Commonwealth]: Your Honor, in the
meantime, I’m going to have these tapes officially
transcribed by a certified translator, not from the
court, and provide a copy to [Appellee] in the
meantime.
I would obviously ask for the fastest date
possible. I know [the trial court has] a busy
calendar. I think it would take me no more than 30
days to get these transcribed.
…
[Defense Counsel]: I would ask the tapes to be
provided 60 days prior to trial, the transcripts.
The Court: We’re just going to give it a regular date
because I don’t know if he can send it to you 60 days
prior if we give it a shorter date.
[Defense Counsel]: If we have a short date, your
Honor, could it be 30 days prior to trial?
[Commonwealth]: That’s fine.
The Court: Okay. [L]et’s see if we can find a date.
What I’m going to say is that they have to be
passed three weeks prior to trial because I want to
make sure there is enough time for the transcription
to be completed and done right so that you can
review it.
[Defense Counsel]: Your Honor, the reason that
I’m asking that it be Commonwealth time is because
they are the ones that want to use the tapes. This is
their evidence.
The Court: I understand. And you want to review all
the tapes because there may be something in there
that you may want to use. I understand your
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argument. But it’s not going to be marked
Commonwealth time.
…
The Court: … What date did you give it?
Court Crier: 4/7.
Id. at 21-23.
Based on the above excerpt, we agree with the Commonwealth that
the trial court’s assertion that the Commonwealth agreed to transcribe all
466 tapes is not supported by the record. As highlighted above, the
Commonwealth had turned over a partial transcription by the ADA of the two
calls it planned to introduce into evidence. In our view, the transcript
reveals that when placed in context, the Commonwealth’s statement, that it
would “have these tapes officially transcribed,” refers to the two tapes it
referenced in its argument to the trial court.4 Id. at 21 (emphasis added).
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4
The Commonwealth argues that Rule 573 does not require it to
affirmatively create transcripts as part of discovery. See generally
Commonwealth’s Brief at 14-15; Commonwealth v. Robinson, 122 A.3d
367, 373-374 (Pa. Super. 2015) (stating, “the general rules … did not grant
the [trial] court inherent rule making authority or the discretionary power to
order the Commonwealth to prepare written transcripts in addition to the
video copies of the interviews [in question]”), appeal denied, 130 A.3d 1289
(Pa. 2015). While we agree with the Commonwealth that the Rule does not
generally require transcripts be created in discovery, we cannot ignore the
certified record in this case, which reveals the Commonwealth elected to
volunteer to have two of the tapes transcribed. See generally N.T.,
2/10/15, at 21.
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This view is reinforced by the timeline established by the trial court of
setting the next trial listing for April 7, 2015. Under the trial court’s
directive, the Commonwealth would have had to turn over any transcripts no
later than March 17, 2015. As the Commonwealth points out, this was
“perhaps a plausible timeframe for the two relevant conversations, which
totaled approximately six minutes, but outstandingly implausible if the
Commonwealth was supposed to produce more than 93 translations a week
for five weeks.”5 Commonwealth’s Brief at 12. Based on these
considerations, we conclude that the Commonwealth only volunteered to
transcribe two of the tapes.6 To the extent the trial court’s preclusion order
applies to the remaining 464 tapes, any issue pertaining to the same is
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5
Appellee also acknowledges, “the Commonwealth promised to have a
certified translation done of the conversations it wished to offer ….”
Appellee’s Brief at 9 (emphasis added); see also id. at 13 (“stating, “the
Commonwealth … asserted that it would have the two recordings transcribed
by an official translator[]”).
6
To the extent the Commonwealth argues that there is no binding
agreement in this case due to lack of consideration, we note that the
Commonwealth did not raise this argument in the trial court. Appellee’s
response to the Commonwealth’s motion for reconsideration specifically
argued that “the Commonwealth … ultimately agreed to transcribe the tapes,
and have it done so by a neutral party.” Appellee’s Response to the
Commonwealth’s Reconsideration Motion, 4/5/15, at 11. The
Commonwealth did not argue at the April 10, 2015 reconsideration hearing
that there was no binding agreement, for want of consideration or otherwise.
As a result, we deem this argument waived on appeal. See generally
Pa.R.A.P. 302(a).
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moot, as the Commonwealth has consistently maintained throughout the
case that it never intended to utilize those other tapes at trial.
The Commonwealth next argues that after it volunteered to have the
two conversations transcribed, it decided that it was unable to do so because
it “wouldn’t pay [the translator’s] fee[.]” N.T., 3/25/15, at 4. Therefore,
instead, the Commonwealth enlisted two police detectives to translate and
transcribe the relevant tapes, and said transcriptions would be turned over
when completed. Id.; Commonwealth’s Brief at 11. The Commonwealth
therefore argues that it substantially complied with the trial court’s order as
it understood it. Commonwealth’s Brief at 11.
In Commonwealth v. Hemingway, 13 A.3d 491 (Pa. Super. 2011),
the Commonwealth appealed from an order “precluding 34 of the
Commonwealth’s witnesses from testifying at the trial … as a result of the
Commonwealth’s failure to provide the defendants with transcripts of the
witnesses’ grand jury testimony in accordance with an agreement reached
on February 27, 2009.” Id. at 493. Relevant to this appeal, the
Commonwealth in Hemingway argued that the trial court abused its
discretion in precluding the witnesses’ testimony because it “substantially
complied with the terms of the February 27 order” and because the sanction
was disproportionate. Id. at 502. The Commonwealth acknowledged that it
was supposed to turn over the transcripts in question by July 6, 2009, but
did so four days later on July 10, 2009. Id. We concluded that the trial
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court abused its discretion in precluding the testimony on the following
grounds.
The record reflects that the attorney representing
the Commonwealth intended to comply with the
February 27 order, but erroneously believed that the
grand jury testimony was to be provided to defense
counsel on July 9, not July 6. The Commonwealth
provided the transcripts on July 10—four days after
the ordered deadline; one day past the deadline the
Commonwealth erroneously believed was set by the
trial court—which was late, but in advance of trial
nonetheless. The Commonwealth also offered to
provide defense counsel with the order in which it
would call its witnesses to afford defense counsel
more time to review the witnesses’ testimony prior
to each day of trial.
The February 27 order was borne out of an attempt
to streamline the trial. Defense counsels’ receipt of
the transcripts in advance of the witnesses’
testimony, coupled with the Commonwealth’s offer
to provide defense counsel with an ordered witness
list, would accomplish that goal and would have
resulted in substantial compliance with the agreed
upon order. Moreover, it was clearly not the
intention of the trial court to terminate the
prosecution when it enforced its order precluding the
34 witnesses from testifying.
This does not mean that a trial court cannot preclude
evidence or testimony when a binding agreement is
reached between the parties, the parties have actual
knowledge of the sanction that is to be employed for
failing to abide by the terms of the agreement, and
one or more of the parties abjectly refuse to comply.
However, the record does not support such a finding
in the instant case.
Therefore, we agree with the Commonwealth that
the decision of the trial court to preclude the
testimony of the 34 witnesses must be reversed
because the Commonwealth substantially
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complied with the terms of the pretrial conference
order of February 27, 2009[.]
Id. at 502-503 (emphasis added).
Turning to this case, the record reveals, as noted above, that the
Commonwealth told the trial court that it would obtain transcripts from a
certified translator. N.T., 2/10/15, at 21. However, after the hearing, the
ADA assigned to the case “reached out to an official transcriber with the
Commonwealth of Pennsylvania and [the ADA’s] office wouldn’t pay his
fee[.]” N.T., 3/25/15, at 4. In an effort to comply, the Commonwealth had
“Detective Rivers and Detective Diaz who are both fluent in both languages”
translate the two calls in question.7 Id. at 4-5. The ADA stated that “the
only impediment [to its full compliance was] … the cost … of the transcribing
or [of] … farm[ing] it out to another person.” Id. at 5. The ADA continued
that “[t]hree days after [the trial court] asked [him] to do this, [he] went
through the process, [and] took it all the way up to [the] trial deputy to try
to resolve this issue, he said no, so as soon as he said no, [the ADA] got the
wheels in progress to try to get [the] detectives on board.” Id.
In our view, the trial court was within its discretion to order the
sanction of preclusion in this case. As noted above, in Hemingway, this
Court concluded that the Commonwealth substantially complied because
even though it was late in providing the grand jury transcripts, it did provide
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7
The Detectives’ first names are not included in the certified record.
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them to the defense and “in advance of trial[.]” Hemingway, supra at
502. In this case, the Commonwealth agreed to “have these [two] tapes
officially transcribed by a certified translator … and provide a copy to
[Appellee.]” N.T., 2/10/15, at 21. Unlike Hemingway, the Commonwealth
was not merely late in its compliance, but rather the Commonwealth
reneged, because the Commonwealth “reached out to an official transcriber
… and [the Commonwealth] wouldn’t pay his fee[.]” N.T., 3/25/15, at 4. It
is not disputed that neither Detectives Rivers and Diaz, nor the ADA, is a
certified translator. In addition, the record reveals that the partial
transcriptions the Commonwealth did turn over were incomplete, due to
some words and phrases that the ADA could not translate. N.T., 3/25/15, at
6; Commonwealth’s Brief at 6.
In Hemingway, we clarified that our holding did not mean that “a trial
court cannot preclude evidence or testimony when a binding agreement is
reached between the parties, the parties have actual knowledge of the
sanction that is to be employed for failing to abide by the terms of the
agreement, and one or more of the parties abjectly refuse to comply.”
Hemingway, supra at 503. Here, the Commonwealth agreed to procure
translations of the two phone calls by an independent certified translator
after it faced a motion for discovery sanctions seeking to preclude their
admission. As a result of that agreement, the trial court declined to preclude
the tapes, and instead granted a continuance so the parties could carry out
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the agreement. However, the Commonwealth refused to comply when it
balked at paying the costs of fulfilling its own promise. This is the type of
situation we contemplated in our caveat in Hemingway. We therefore
conclude the Commonwealth has not substantially complied in this case.
In addition, we reject the Commonwealth’s assertion that once it
became apparent that it would not comply, the onus fell on the trial court to
grant another continuance. Although a continuance would have been
warranted if the Commonwealth needed additional time, this is not the case.
The Commonwealth outright refused to pay the cost of the certified
translator; therefore, no number of continuances would have sufficed,
because the Commonwealth was not going to pay the fees to translate the
relevant phone calls. Therefore, we conclude that in this case, the “trial
court [could] preclude evidence[.]” Hemingway, supra.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion when it precluded the Commonwealth from introducing the
tapes in question. See id. Accordingly, the trial court’s March 25, 2015
order is affirmed.
Order affirmed.
Judge Musmanno joins the memorandum.
Judge Bowes files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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