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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, MUNDY AND MUSMANNO, JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED JULY 14, 2016
I respectfully dissent from the learned majority’s affirmance of the
discovery sanction levied by the trial court. Due to the confusion surrounding
the translation of the tapes in question, which the majority acknowledges in
its memorandum, I agree with the Commonwealth that the imposed sanction
of preclusion of the tapes was disproportionate to its offensive conduct.
Accordingly, I would reverse.
This Court reviews “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). Nevertheless, we must recall
that “[w]hile the trial court is accorded discretion to sanction a party who
violates an order, there are limits upon the sanctions that a trial court can
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impose.” Id. Critically, this Court has held that the appropriate sanction in a
criminal case for a violation of discovery rules by the Commonwealth is to
deny the prosecution “the fruits of its transgressions.” Id. (quoting In re
York County Dist. Attorney's Office, 15 A.3d 70, 73 (Pa.Super. 2010)).
In the present case, the Commonwealth’s transgression was failing to
abide by its voluntary proposal to “have [the] tapes officially transcribed by
a certified translator, not from the court.” N.T. Motion, 2/10/15, at 21.
There is no doubt, and Appellee does not contest, that the Commonwealth
did, in fact, provide Appellee with all original recordings of the prison calls,
which were in Spanish. Appellee obviously speaks the language and knew
what the tapes said. While the Commonwealth agreed to provide the
English transaction, the Commonwealth made attempts perform that action.
Before the trial court heard any arguments regarding the recordings, the
assistant district attorney gave Appellee a partial transcription of the two
relevant phone calls, i.e., the ones that included statements by Appellee
indicating his involvement in the crimes charged against him.
Following the prosecutor’s voluntary proposal to have the tapes
officially transcribed, the trial court granted a continuance. In addition, the
trial court ordered the Commonwealth to have prison calls transcribed in
English, and handed over to Appellee at least three weeks before trial. The
trial court reports that its order pertained to all the prison tapes involving
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Appellee while the Commonwealth counters that it offered to transcribe only
the two tapes it intended to use at trial.
The majority agrees with the Commonwealth that it was only required
to transcribe the two inculpatory tapes and characterizes the offer as a
binding agreement. That conclusion furthers the confusion involved in this
case. While it appears as if the Commonwealth was under the impression
that it was only ordered to provide Appellee with transcripts of the two
phone calls it wished to use, the trial court maintained its order pertained to
all 466 phone calls. See Appellant’s Brief at 11-12; See also Trial Court
Opinion, 9/17/15, at 4, 8-9.
In affirming, the majority reasons that the record does not support the
trial court’s assertion, and rules the Commonwealth was only mandated to
provide Appellee with transcriptions of two phone calls. Thus, even though
the majority acknowledges the confusion created by the trial court’s order, it
still finds the sanction which precluded the use of the tapes to be a proper
exercise of the trial court’s discretion. This affirmance simply does not
appropriately account for the facts of the case.
Following the trial court’s order, the assistant district attorney made
efforts to transcribe the tapes but was unable to obtain an official transcriber
since the district attorney’s office refused to pay the fee. Thereafter, the
assistant district attorney enlisted the help of two Spanish speaking
detectives to translate and transcribe the tapes.
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At the second hearing for discovery sanctions, the prosecutor informed
the trial court of the situation and offered to provide Appellee with the
transcriptions once they were finished. Therefore, the record shows that the
attorney in question did not maliciously withhold evidence from Appellee. In
fact, the Commonwealth made reasonable attempts to provide Appellee with
the transcripts of his own prison phone conversations, which the law does
not strictly require. See Commonwealth v. Robinson, 122 A.3d 367, 373-
4 (Pa.Super 2015) (declaring Pa.R.Crim.P. 573 does not positively require
the Commonwealth to provide transcripts when the evidence has been
disclosed and made available to the defense). The de minimus nature of the
Commonwealth’s infraction is compounded by the fact that Appellee speaks
Spanish and could readily translate for himself all of the recordings.
The majority analyzes only one case to support its conclusions. In
Commonwealth v. Hemingway, 13 A.3d 491 (Pa.Super 2011), this Court
held that the trial court’s preclusion of grand jury testimony from thirty-four
witnesses was too severe because the Commonwealth “substantially
complied” with the trial court’s discovery order to supply transcripts and
preclusion would “substantially hamper the prosecution.” Id. at 503. In that
case, the Commonwealth conformed to the order, but did so four days late.
Id. at 502. The majority is correct in noting that in the case sub judice, the
Commonwealth was not merely late in compliance, but it did not fulfill its
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offer to have the tapes officially transcribed. Majority Memorandum at 12.
However, reliance upon Hemingway alone is questionable.
To bolster its affirmance of the trial court’s preclusion order, the
majority relies on a caveat from Hemingway, stating a trial court may still,
“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 parties abjectly refuse to comply.” Id. (quoting Hemingway,
supra at 503).
In my view, reliance on this language is misguided. First, the
assertion that the parties reached a binding agreement is tenuous at best.
“A binding agreement exists where all parties come to a meeting of the
minds on all essential terms of the agreement.” Mastroni-Mucker v.
Allstate Ins. Co., 976 A.2d 510, 518 (Pa.Super. 2007). Herein, there was
simply an offer to have an official translator; Appellee never requested that
action. Moreover, the Commonwealth was not, as noted, mandated to
undertake that action.
Next, as discussed supra, the record does not support the conclusion
that the Commonwealth “abjectly” refused to comply with the trial court’s
order. The Commonwealth made multiple attempts to transcribe the tapes,
all the while subject to an ambiguous discovery order. Perhaps if the
Commonwealth knew exactly what the trial court expected of it, compliance
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would have been obtainable. Accordingly, this case does not present us with
a situation contemplated in our caveat in Hemingway.
Furthermore, this Court has avowed, “[a] continuance is appropriate
where the undisclosed statement or other evidence is admissible and the
defendant's only prejudice is surprise.” Commonwealth v. Smith, 955 A.2d
391, 395 (Pa.Super. 2008) (citation omitted). Indeed, a continuance is an
adequate remedy in the majority of cases. Id. (citation omitted). Herein,
we are not presented with a situation where the Commonwealth has failed to
disclose material evidence. The Commonwealth disclosed the recordings to
Appellee, and Appellee had the opportunity to review his prison phone calls
and prepare a defense since he understood their contents.
Consequently, Appellee has presented no proof of prejudice, through
surprise or otherwise, and the majority fails to address this fact. The only
cognizable prejudice created in this matter stems from the Commonwealth’s
loss of incriminating statements made by Appellee. Such evidence obviously
is invaluable at trial. Under these circumstances, it was unreasonable for
the trial court to preclude the admission of the inculpatory tapes given their
probative value.
In conclusion, a careful review of the record exposes that the trial
court’s preclusion of the tapes in question was a clear abuse of discretion.
Not only did the trial court issue a confusing order, but it also levied a
punishment which did not fit the crime. The Commonwealth’s loss of
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inculpatory phone recordings, when it made reasonable efforts to transcribe
the recordings out of its own good will, epitomized far more than a denial of
the fruits of its transgressions. Hence, I dissent.
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