Commonwealth v. Maldonodo

J-E01001-17
2017 PA Super 294

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: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON,
DUBOW, MOULTON AND SOLANO, JJ.

OPINION BY BOWES, J.: FILED SEPTEMBER 12, 2017

The Commonwealth appeals from the March 25, 2015 order precluding

it from introducing at trial two jail call recordings in which Appellee, speaking

Spanish, allegedly made inculpatory statements. This sanction was imposed

because the Commonwealth ostensibly failed to comply with an earlier order

to provide Spanish-to-English transcriptions of 464 other recorded phone

calls in addition to the two calls the Commonwealth intended to use. We

reverse.1

____________________________________________

1
The Commonwealth timely appealed from the March 25, 2015 order
imposing the instant sanctions and has certified, pursuant to Pa.R.A.P.
(Footnote Continued Next Page)
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The instant charges arose from an alleged robbery. Following

postponements for reasons unrelated to the instant dispute, trial was set for

February 10, 2015. On February 8, 2015, Appellee filed a motion for

discovery sanctions. This motion represented that Appellee had requested in

April 2014, inter alia, “any and all written or otherwise recorded statements

attributed to the defendant, as well as any transcripts and recordings of any

electronic surveillance.” Motion for Discovery Sanctions, 2/8/15, at ¶ 3. The

assistant district attorney had provided, on February 6, 2015, digital copies

of 466 calls placed by Appellee while he was incarcerated. These tapes

spanned November 13, 2013, to November 19, 2014. The Commonwealth

informed counsel at that time that it intended to introduce a total of six

minutes from two of these phone calls.

On February 10, 2015, the trial court held a hearing. Counsel argued

that the Commonwealth was required to produce transcriptions of each call,

translated into English, based upon the theory that she “ha[s] an obligation

and a duty [to review], and my client has a right for me to review all of the

tapes, not just the six minutes that the Commonwealth wants to use.” N.T.

Motions Hearing I, 2/10/15, at 13. The Commonwealth countered that it

had provided counsel with a translation of the portions of the phone calls

_______________________
(Footnote Continued)

311(d), that the order will terminate or substantially handicap its
prosecution.

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that it intended to introduce at trial, “not for official evidence . . . [but] for

[counsel’s] benefit so that [counsel] can know exactly what is on the two

phone calls[.]” Id. at 14-15.2

The trial court declined to impose sanctions, but granted a

continuance so that defense counsel could review the tapes. The

Commonwealth thereafter agreed to provide official transcriptions of “these

tapes.” However, as we shall explain, the parties take different views of

what, if anything, the Commonwealth promised to transcribe when the

prosecutor made this statement.

[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 Counsel in
the meantime.

I would obviously ask for the fastest date possible. I know you
have a busy calendar. I think it would take me no more than 30
days to get these transcribed.

....

[APPELLEE]: 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.

____________________________________________

2
The assistant district attorney spoke Spanish and provided this initial
translation. Later, Spanish-speaking detectives prepared a separate
transcription.

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[APPELLEE]: If we have a short date, Your Honor, could it be 30
days prior to trial?

[COMMONWEALTH]: That’s fine.

THE COURT: Okay. Corrine, let’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.

Id. at 21-22. The court did not enter a separate written order; however, the

docket sheet contains an entry stating, “Commonwealth to get prison calls

transcribed and passed to Defense 3 weeks prior to trial.” Docket entry,

2/10/15.

The Commonwealth did not have any calls transcribed by a certified

translator. As a result, Appellee filed a second motion for sanctions,

claiming that the trial court “held that the Commonwealth must translate all

of the tapes provided and provide such tapes to the defense three weeks

prior to trial.” Motion for Sanctions II, 3/20/15, at 2, ¶ 8 (unnumbered,

emphasis added). The motion represented that, on March 2, 2015, the

prosecutor informed defense counsel that his office lacked the resources to

translate the tapes and suggested to counsel that she review the translation

with her client so the parties could “agree on a version that accurately

presents the contents of the phone calls.” Id. at 3, ¶ 9. Appellee rejected

this notion, claiming that it would “force [Appellee] to provide evidence

against himself and to aid in his own prosecution[.]” Id. at 3, ¶ 1.

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At another hearing, the prosecutor explained to the court that he had

requested a certified translator, but his superiors refused to pay the fee.

N.T. Motions Hearing II, 3/25/15, at 5. Instead, he had Spanish-speaking

detectives create an additional transcript to replace the previous version.

Appellee’s counsel reiterated her contention that counsel was “still

completely handicapped in the sense that I don’t have the other 464 calls

that are still not provided to me.” Id. at 6-7. The trial court granted the

motion and precluded the Commonwealth from introducing any of the tapes.

The Commonwealth filed a motion to reconsider, which the court denied.

The Commonwealth simultaneously filed a notice of appeal and a

concise statement of matters complained of on appeal. The trial court

authored its opinion in response, and the matter is ready for our review.

The Commonwealth presents the following issue:

Did the trial court abuse its discretion in suppressing audio
recordings of defendant'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’s brief at 4.

The Commonwealth asserts that it was required only to disclose the

two tapes which it informally translated, and avers that it supplied Appellee

with the full set of tapes as a matter of policy and professional courtesy.

The Commonwealth further argues that the other 464 calls are not material,

in that they “are personal conversations that have no relevance to any issue

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in this case.” Commonwealth’s brief at 15. Concomitantly, the

Commonwealth asserts it cannot possibly be sanctioned for refusing to

transcribe and translate something it was not required to turn over in the

first instance. Additionally, the Commonwealth maintains the trial court was

not authorized to require the Commonwealth to prepare transcriptions and

translations of any call in that the criminal discovery rule speaks only to

evidence that actually exists. Finally, the Commonwealth states that

Appellee was not prejudiced by its failure to supply a certified translation.

I

Applicable law and standard of review

We first set forth the basic principles governing the Commonwealth’s

discovery obligations in a criminal case. The applicable rule of criminal

procedure declares a preference for informal discovery, contemplating that

the parties will “make a good faith effort to resolve all questions of

discovery, and to provide information required or requested under these

rules as to which there is no dispute.” Pa.R.Crim.P. 573(A). Rule 573 states

that informal discovery must take place before a party may request

discovery via motion. Upon motion by the defendant, the rule delineates the

items that the Commonwealth must supply:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to

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the defendant's attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant's
attorney to inspect and copy or photograph such items.

(b) any written confession or inculpatory statement,
or the substance of any oral confession or
inculpatory statement, and the identity of the person
to whom the confession or inculpatory statement
was made that is in the possession or control of the
attorney for the Commonwealth;

....

(g) 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.

Rule 573 does not abridge or limit the Commonwealth’s duty to

provide discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and

its progeny. “In Brady, the United States Supreme Court held that the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment irrespective of the good faith or bad faith of the prosecution.”

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (quotation

marks omitted). “There are three components of a true Brady violation:

The evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must

have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

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However, the rule imposes greater obligations upon prosecutors than

the Brady requirements. For instance, (B)(1)(b) requires production of a

defendant’s written confession. Nevertheless, our cases frequently analyze

whether a particular discovery sanction was justified by analyzing whether

the evidence was required to be disclosed pursuant to Brady. See e.g.

Commonwealth v. Robinson, 122 A.3d 367 (Pa.Super. 2015) (reversing

order precluding Commonwealth from introducing evidence, analyzing

Brady). That one would draw upon Brady principles in determining

materiality is unsurprising since the rule limits disclosure to “material” items,

Pa.R.Crim.P. 573(B), and “material for Brady purposes” has a particular

meaning. See e.g. Commonwealth v. Willis, 46 A.3d 648 (Pa. 2012)

(noting that admissibility at trial is not a prerequisite to disclosure under

Brady).

If the Commonwealth has violated its discovery obligations, the trial

court is authorized to impose sanctions:

(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 (emphasis added).

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Presently, the Commonwealth disclosed all of the evidence by

disseminating to Appellee digitized copies of all of Appellee’s prison calls.

Nonetheless, the trial court prohibited inclusion of the two material tapes,

presumably under the emphasized catch-all provision. We apply the

deferential abuse of discretion standard to any employed remedy. “The trial

court has broad discretion in choosing the appropriate remedy for a

discovery violation.” Commonwealth v. Poplawski, 130 A.3d 697, 718

(Pa. 2015). The term discretion

imports the exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion, and discretionary power can
only exist within the framework of the law, and is not exercised
for the purpose of giving effect to the will of the judges.
Discretion must be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice or arbitrary
action. Discretion is abused when the course pursued represents
not merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.

Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998) (citation

omitted).

II

Trial court’s justifications for sanction

Since the trial court has broad discretion in choosing a discovery

remedy, we begin with examining why the court imposed the sanction. The

trial court set forth two alternative theories justifying the sanction, and we

address each in turn. The first theory relied upon contractual law principles,

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with the trial court stating that the Commonwealth promised to provide

certified transcriptions and translations of all 466 calls. The second theory

relied upon a finding that transcriptions and translations were needed so

that trial counsel could effectively discharge her duties under the Sixth

Amendment.

III

First rationale: A contract to provide discovery

A

Sanctions for breaking a purported promise to transcribe all calls

We begin with the contractual theory, as the trial court reasoned that

the Commonwealth could be sanctioned for its failure to provide certified

transcriptions and translations of all calls as it purportedly promised to do,

regardless of whether the Commonwealth was required to supply those

materials under the law.

The key dispute is what, if anything, the Commonwealth promised to

do when the assistant district attorney stated at the first sanctions hearing,

“Your Honor, in the meantime, I’m going to have these tapes officially

transcribed by a certified translator[.]” N.T. Motions Hearing I, 2/10/15, at

21. The trial court apparently interpreted this statement to mean that the

Commonwealth promised to provide certified transcriptions of all tapes, as

opposed to the two it intended to introduce at trial. The trial court states

that “[T]he parties reached a binding agreement for the Commonwealth to

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provide defense counsel with written transcriptions[.]” Trial Court Opinion,

9/17/15, at 10 (citing Commonwealth v. Hemingway, 13 A.3d 491

(Pa.Super. 2011)).

Both parties extensively address this theory and invoke contractual

law principles. “Both [A]ppellee and the lower court relied on this

representation, and the agreement was memorialized by a court order

evident in the docket. The Commonwealth never contested that [an]

agreement was made before the trial court.” Appellee’s brief at 17. The

Commonwealth, on the other hand, claims that there was not an agreement

at all. “It is settled that for an agreement to exist, there must be a meeting

of the minds.” Commonwealth’s brief at 22. The Commonwealth highlights

that, in context, the statement referred only to the two tapes in question,

since the volume of the other calls was such that a translator would have to

“transcribe and translate more than 15 Spanish-language recordings a day,

seven days a week” to comply with the thirty-day time period mentioned by

the prosecutor. Commonwealth’s brief at 14.

Appellee, like the trial court, relies upon Hemingway as controlling

the question of whether sanctions are authorized based on a breach of a

promise to supply discovery. We find that Hemingway is distinguishable.

Hemingway involved a Commonwealth appeal from an order precluding

thirty-four witnesses from testifying due to the prosecution’s failure to

provide the five co-defendants with transcripts of the witnesses’ grand jury

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testimony. At a pretrial conference, the Commonwealth had agreed to

provide copies of the grand jury testimony transcripts by a particular date.

The order outlining that agreement explicitly stated that the failure to do so

would result in an order preventing those witnesses from testifying. Id. at

494. The Commonwealth provided the materials four days late. Consistent

with its earlier order, the trial court precluded the Commonwealth from

calling the witnesses.

The Commonwealth appealed, and we observed that the trial court

could validly sanction the failure to abide by the order even though the order

resulted from the Commonwealth’s own agreement to provide the materials

by the specific date. Id. at 498. However, we determined that the sanction

was unwarranted since the Commonwealth had substantially complied with

the order, and, looking at the “specific facts of this case and the rationale

behind the . . . order, we are constrained to agree . . . that this sanction

yielded too extreme a result.” Id. at 502. Pertinent to the instant appeal,

we made this additional observation:

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.

Id. at 503.

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Appellee argues that the aforementioned passage applies herein

because, unlike in Hemingway, the Commonwealth did not comply with its

promise to any extent. We find that the case is inapposite. The

circumstances of this case are quite different since a criminal defendant is

entitled to review a witness’s grand jury transcripts following his or her

testimony at trial. Pa.R.Crim.P. 230(B)(2).3 Thus, Hemingway is better

understood as a case about when the defendants would receive the

transcripts, not, as here, whether they would receive those items at all.

Moreover, as the Commonwealth aptly notes, the instant court order

required the Commonwealth to generate evidence. “Nothing in the rule

obliges the Commonwealth to create transcripts so that it has something to

disclose.” Commonwealth’s brief at 16 (emphasis in original). In

comparison, grand jury testimony must be recorded and transcribed by a

court reporter. Pa.R.Crim.P. 556.8(A) (“Proceedings before an indicting
____________________________________________

3
Rule 230. Disclosure of Testimony Before Investigating Grand Jury
....
(B) Defendant in a Criminal Case:
....
(2) When a witness in a criminal case has previously testified
before an investigating grand jury concerning the subject matter
of the charges against the defendant, upon application of such
defendant the court shall order that the defendant be furnished
with a copy of the transcript of such testimony; however, such
testimony may be made available only after the direct testimony
of that witness at trial.

Pa.R.Crim.P. 230.

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grand jury, other than the deliberations and voting of the grand jury, shall

be recorded by a court reporter or by a suitable recording device, and a

transcript made.”). Therefore, the quoted caveat from Hemingway cannot

be divorced from the grand jury context.

Additionally, even assuming that the Commonwealth’s ambiguous

promise to transcribe “these calls” referred to all 466 of the calls as opposed

to the two calls it intended to introduce at trial, there is no indication that

the Commonwealth had knowledge of the sanction for noncompliance.

Hence, Hemingway does not support Appellee’s position.

B

Appellee’s alternative contractual theory

In his substituted en banc brief, Appellee now argues that the sanction

was justified because the Commonwealth was required to provide certified

translations of only the two material calls.

In its renewed argument to this Court en banc, the
Commonwealth sets up a fallacious straw man, claiming that the
trial court and the Panel of this Court required the
Commonwealth ‘to transcribe and translate, at its own expense,
464 recordings of irrelevant and inadmissible prison telephone
calls defendant made on other occasions.’ However, the record
shows that the trial court ordered the Commonwealth to
transcribe and translate only the two pertinent audio recordings.

Appellee’s brief at 6.

This statement is rather remarkable considering Appellee continuously

represented to the trial court that the Commonwealth was obligated to

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transcribe all 466 calls. Indeed, Appellee himself interpreted the trial court’s

February 10, 2015 order as requiring transcription of all the calls. In his

response to the Commonwealth’s motion to reconsider the sanction,

Appellee stated “The [c]ourt’s initial ruling was legally sound and should be

enforced. The Commonwealth should be required to produce English

transcripts for all the tapes.” Appellee’s Response to the Commonwealth’s

Motion for Reconsideration, 4/5/15, at 2.

Plainly, the trial court interpreted the prosecutor’s ambiguous

statement, “I’m going to have these tapes officially transcribed by a certified

translator,” to refer to all 466 calls. In the interest of judicial economy, we

proceed to examine whether the Commonwealth was required to supply

certified transcripts of the two material calls.4

The Commonwealth argues that the order cannot be justified even on

these limited grounds because it cannot be ordered to provide evidence in a

form demanded by the defense, i.e., a transcription prepared by a certified

translator. The Commonwealth argues that such an order is inconsistent

with Commonwealth v. Robinson, 122 A.3d 367 (Pa.Super. 2015). We

agree.

____________________________________________

4
The Commonwealth does not concede that it even promised to supply
certified translations and transcriptions of the two material calls. Rather, it
describes the quoted statement as “the Commonwealth’s statement of intent
to transcribe” those calls. Commonwealth’s brief at 13.

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Robinson involved a Commonwealth appeal from an order

sanctioning the Commonwealth for failing to provide transcripts of victims’

interviews. The Commonwealth had charged multiple defendants with

various counts of physical and sexual abuse of minor victims. Id. at 370.

As part of the investigation, the victims were interviewed by the Philadelphia

Children’s Alliance (“PCA”). These interviews were taped, copied, and

provided to all defendants. The trial court subsequently granted defendants’

request to order the Commonwealth to prepare verbatim written

transcriptions of all interviews. We reversed, citing, in part, the Brady

doctrine of accessibility discussed supra. Since the defendants had equal

access, we concluded that nothing obligated the Commonwealth to provide

the evidence in a particular form.

Instantly, the Commonwealth provided Appellees during
discovery with DVD copies of all the victims' PCA interviews.
Despite this disclosure, Appellees filed motions to compel as well
verbatim written transcripts of all video interviews, alleging the
transcripts were necessary for effective cross-examination and
impeachment of the victims because playing the video interviews
during cross-examination would be inefficient and cause
unnecessary delay. The court granted the motions and ordered
the Commonwealth to transcribe the interviews. When the
Commonwealth ultimately demurred, the court precluded the
Commonwealth from calling the victims to testify at Appellees'
respective trials. We think the court's action was in error.

The Commonwealth has no duty to provide evidence in a
form that the defendant demands for the convenience of
the defense. Appellees had no general right of discovery. Once
the Commonwealth disclosed the victims' video DVD interviews,
the evidence was no longer in the exclusive control of the

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Commonwealth. Thus, the evidence was equally available
to Appellees in a source other than a written transcript.

Id. at 373 (emphases added; quotation marks and citations omitted).

Appellee responds that Robinson is inapplicable because the trial

court ruling therein terminated the case, while here the Commonwealth is

merely precluded from introducing the two recordings, and thus the remedy

was “not extreme, as it does not end the Commonwealth’s prosecution.”

Appellee’s brief at 17. We are not persuaded. Robinson did not hold that

the scope of the remedy was too drastic in light of the violation. Rather, it

concluded that there was simply no violation to sanction in the first place

due to the equal access. The same holds true herein.

We recognize that the trial court was concerned that counsel did not

actually have access to these calls, as counsel could not understand the

calls. In Robinson, the interviews were presumably in English and readily

understood by the attorneys. Thus, we agree that Robinson is not directly

controlling to that extent.

However, we cannot agree that certified translations are per se

required. Robinson holds that a defendant is not entitled to evidence in the

form he wishes, which is precisely the argument Appellee now makes.5 “The

____________________________________________

5
We note that Pa.R.Crim. 573(B)(1)(g) requires disclosure of material
“transcripts and recordings of any electronic surveillance, and the authority
by which the said transcripts and recordings were obtained.” In this case,
(Footnote Continued Next Page)

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Commonwealth’s refusal to have a certified interpreter translate and

transcribe the relevant phone calls into English was an issue of fundamental

fairness.” Appellee’s brief at 12. Appellee does not explain why fairness

dictates a certified translation, as opposed to an accurate one, at this

stage of the proceedings. The Commonwealth correctly notes that Appellee

has confused what the Commonwealth intends to introduce with what it

actually introduces at trial. Rule 573’s remedial provision applies at any

point in the proceedings. If the Commonwealth’s transcriptions supplied in

discovery deviated from what it actually introduced at trial, nothing prevents

Appellee from seeking sanctions at that time.

When addressing whether a remedy is an abuse of discretion, we have

stated that, “[t]he remedy in the criminal proceeding is limited to denying

the prosecution the fruits of its transgressions.” In re York County Dist.

Attorney's Office, 15 A.3d 70, 73 (Pa.Super. 2010) (citation omitted). We

fail to see any transgression whatsoever under these facts. Appellee does

not claim that the supplied transcriptions were inaccurate in any way, and he

refused to speak to his attorney about the matter. Appellee’s Response to

the Commonwealth’s Motion for Reconsideration, 4/5/15, at 2 (“[Appellee]

should not be required to help the Commonwealth translate the prison tapes
_______________________
(Footnote Continued)

the Commonwealth voluntarily created and provided a transcription, and we
need not reach the separate question of whether this provision would
otherwise require the Commonwealth to create one.

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in any capacity.”). Appellee invokes a number of federal decisions for the

proposition that “before conversations in a foreign language may be

submitted to a jury, issues must be addressed about the accuracy of

the translation[.]” Appellee’s brief at 13 (emphasis added). His citations

do not support his argument as a matter of persuasion. Consider the

following passage from United States v. Morales-Madera, 352 F.3d 1 (1st

Cir. 2003), a case cited by Appellee:

Commonly, the transcripts and the English translations of those
transcripts are produced by the government and copies are then
given to the defendant. Sound trial management and
considerations of fairness caution that the government provide
these copies to defense counsel adequately in advance, so that
disputes concerning the reliability of the transcription in
the original language and of the English translation may
be brought to the attention of the district court or
resolved by agreement. Counsel, of course, may agree to
the accuracy in both senses.

Id. at 8 (emphasis added). Herein, Appellee expressly refused to address

the accuracy of the transcript provided by the Commonwealth, and, in fact,

claimed that agreeing to the accuracy of the transcript in any way would

violate his Fifth Amendment privilege against self-incrimination.

Reviewing an offer of proof with his attorney to discuss the accuracy of

what the Commonwealth has already transcribed is not the equivalent of

forcing Appellee to translate the tapes. Appellee’s argument would

transform, for example, a pre-trial stipulation to the accuracy of a lab test

for drugs into a violation of the Fifth Amendment. Since Appellee refused to

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even consider whether the supplied transcriptions and translations were

accurate, it is difficult to see how he was prejudiced in any way.

C

Applying contractual law principles under these circumstances undermines
Rule 573’s purpose

While we are satisfied that the sanction cannot be justified on the

contractual basis, we do not hold that an actual binding agreement or a

promise to supply discovery that is not otherwise mandated by law is

immaterial to remedies. Rather, in these circumstances, where there is

much ambiguity, we find that injecting contractual law principles is

unwarranted. Rule 573 states a preference for informal discovery and

encourages the parties to resolve all discovery disputes in good faith.6

Forcing the Commonwealth to honor a purported promise to translate all 466

calls, or provide certified translations of the two material calls at its own

expense, without analyzing whether it was actually obligated to do so would

simply encourage future litigants to avoid good faith efforts, knowing that

those efforts might be later construed as a binding promise. According to

the trial court and Appellee’s logic, the Commonwealth would be in a
____________________________________________

6
We do not suggest that bad faith efforts are irrelevant to remedies or
whether the Commonwealth has prosecuted the case with due diligence as
required by Pa.R.Crim.P. 600. There is no suggestion herein that the
prosecutor’s statement was made in bad faith, as the prosecutor’s superiors
refused to pay the translator’s fee.

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superior legal position before this Court if it had withheld the evidence it

determined was non-material and forced Appellee to fully litigate the

discovery issues. Clearly, such an outcome would do violence to the rule’s

preferences. Moreover, we have previously held that review of a discovery

remedy requires an analysis of what the Commonwealth’s discovery

obligations were. See Commonwealth v. Jordan, 125 A.3d 55 (Pa.Super.

2015) (en banc) (reviewing, where trial court sanctioned Commonwealth for

failing to abide by order to disclose identity of confidential informant,

whether trial court could lawfully order disclosure).

We recognize that Hemingway, supra suggests that a promise to

provide discovery is itself a pertinent consideration to the question of

remedies. We do not dispute that general proposition. Rather, in this case,

where the scope of the Commonwealth’s asserted promise is unclear and

there is no knowledge whatsoever of a sanction for failing to turn over the

material, we do not think Rule 573’s purpose would be served by upholding

the sanction under this theory.

Having concluded that the contract theory cannot justify the sanction

under these facts, we turn our attention to whether the Commonwealth was

required to provide transcriptions of all phone calls in the first instance.

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IV

Trial court’s alternative rationale: Sixth Amendment

The trial court’s Pa.R.A.P. 1925(a) opinion establishes that it also

imposed sanctions due to its belief that the Commonwealth was required not

only to disclose all calls, but also provide translated transcriptions as an

independent constitutional command outside the realm of discovery caselaw.

The trial court reasoned:

In this case, the prison tapes are discoverable, on request by
defense counsel to the Commonwealth, under Pa.R.Crim.P.
573(B)(1)(b) as an inculpatory statement or Pa.R.Crim.P.
573(B)(1)(g) as a recording of any electronic surveillance. The
trial court has broad discretion in deciding the admissibility of
evidence and in choosing the appropriate remedy for a discovery
violation. Under Pa.R.Crim.P. 573(E), "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." In fact, the Sixth Amendment demands that in
all criminal prosecutions, the accused shall enjoy the right to
effective counsel and to be confronted with the witnesses against
him. U.S. Const. amend. VI. Thus, Defendant's Sixth
Amendment rights would be violated without a timely
produced transcription of the tapes and render counsel
ineffective.

Trial Court Opinion, 9/17/15, at 9 (emphasis added). The trial court also

stated that “[T]he Rule of Completeness demands that a defendant

possesses a right to admit the rest of the transcript so that the defendant

may provide context for an allegedly inculpatory statement or correct

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misleading evidence[.]” Id. at 11. Hence, the trial court determined that

the Commonwealth was required to provide transcriptions of all 466 tapes so

that defense counsel could adequately prepare for trial.

We find that the trial court’s ruling is a misapplication of the law, and

therefore represents an abuse of discretion warranting reversal.

A

Disclosure applies only to material evidence

First, the trial court misunderstood the Commonwealth’s discovery

obligations. Pursuant to both Brady and Rule 573, the Commonwealth was

only required to disclose material evidence. Nonetheless, Appellee

represented, and the trial court accepted, that he was entitled to

transcriptions of all calls in order to engage in a fishing expedition to find out

whether any of the calls provided helpful context. Simply put, Appellee did

not establish that the calls were material, and, since the Commonwealth

represented that the calls were immaterial, then it need not have provided

them.7 In this respect, we note that Appellee speaks Spanish, can review

____________________________________________

7
The Commonwealth asserts that 464 of the 466 calls do not contain
material evidence as a matter of law. Nothing in the record corroborates or
dispels that conclusion, as the trial court determined it was required to turn
over all the material on the theory that potentially relevant Brady items
were contained within the calls. The record obviously does not contain
transcriptions of all calls since that very point is at issue. It is more accurate
to state that the Commonwealth has represented, for purposes of its
discovery obligations, that the remaining 464 calls are immaterial.
(Footnote Continued Next Page)

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the calls, and can assist counsel in identifying any helpful material within

those calls.

The fact that the Commonwealth provided more than it was required

cannot be used to its detriment. To hold otherwise would create perverse

incentives. Brady claims typically arise following conviction, when the

defendant seeks a new trial based on the failure to turn over evidence.

However, as the United States Supreme Court has stated, the post-trial

Brady standard logically applies to what must be disclosed pre-trial.

First, in advance of trial, and perhaps during the course of a trial
as well, the prosecutor must decide what, if anything, he should
voluntarily submit to defense counsel. Second, after trial a
judge may be required to decide whether a nondisclosure
deprived the defendant of his right to due process. Logically the
same standard must apply at both times. For unless the
omission deprived the defendant of a fair trial, there was no
constitutional violation requiring that the verdict be set aside;
and absent a constitutional violation, there was no breach
of the prosecutor's constitutional duty to disclose.

Nevertheless, there is a significant practical difference between
the pretrial decision of the prosecutor and the post-trial decision
of the judge. Because we are dealing with an inevitably
imprecise standard, and because the significance of an item of
evidence can seldom be predicted accurately until the entire
record is complete, the prudent prosecutor will resolve
doubtful questions in favor of disclosure. But to reiterate a
critical point, the prosecutor will not have violated his
constitutional duty of disclosure unless his omission is of
sufficient significance to result in the denial of the defendant's
right to a fair trial.

_______________________
(Footnote Continued)

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J-E01001-17

United States v. Agurs, 427 U.S. 97, 107-08 (1976) (emphases added).

See Kyles v. Whitley, 514 U.S. 419, 439 (1995) (“[A] prosecutor anxious

about tacking too close to the wind will disclose a favorable piece of

evidence. This is as it should be.”). 8

Herein, the Commonwealth provided Appellee with the unfettered

ability to review all of the calls despite its averment that 464 of them were

immaterial, and, therefore, not subject to disclosure. To repeat our

observation supra, it would do disservice to the rule’s purpose to punish the

Commonwealth for erring on the side of disclosure. Access to the material

obviously placed Appellee in a better position, despite the Commonwealth’s

assurances that 464 of the calls were immaterial, than no access at all.

The Commonwealth prudently erred on the side of disclosure and

permitted Appellee to go on a fishing expedition, but the trial court

determined that the Philadelphia District Attorney’s Office must pay for the

fishing pole, too. This was erroneous.

B

Discovery obligations are satisfied if the defendant has access

Compounding its materiality error, the trial court ignored the legal

consequences flowing from the fact of disclosure. Fundamentally, both

____________________________________________

8
Tacking is a sailing technique used when the wind is blowing against the
desired direction of the vessel.

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J-E01001-17

Brady and the rule are designed to ensure that the defendant has access to

material evidence and the ability to review that information. As the United

States Court of Appeals for the Third Circuit has observed: “Brady and its

progeny permit the government to make information within its control

available for inspection by the defense, and impose no additional duty on the

prosecution team members to ferret out any potentially defense-favorable

information from materials that are so disclosed.” United States v.

Pelullo, 399 F.3d 197 (3d Cir. 2005).9

Emphasis on access is further reflected by the rule’s text requiring the

Commonwealth, when applicable, to “permit the defendant’s attorney to

inspect and copy or photograph [discovery materials].” Pa.R.Crim.P.

573(B)(1). The rule’s Comment states that defendants shall not be charged

for copies of materials, yet permits the Commonwealth to ask the trial court,

on a case-by-case basis, to order the defendant to pay some of the

discovery costs:

The attorney for the Commonwealth should not charge the
defendant for the costs of copying pretrial discovery materials.
However, nothing in this rule is intended to preclude the
attorney for the Commonwealth, on a case-by-case basis, from
requesting an order for the defendant to pay the copying costs.

____________________________________________

9
With respect to the “within the Commonwealth’s control” aspect, we
express no opinion whether the jail calls were otherwise accessible to
Appellee. The litigation in this case concerns the Commonwealth’s
obligations once it obtained the calls.

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J-E01001-17

In these cases, the trial judge has discretion to determine the
amount of costs, if any, to be paid by the defendant

Comment, Pa.R.Crim.P. 573. While this comment would appear to be

directed at cases involving voluminous documentary evidence, its insertion

makes plain that the purpose of discovery is satisfied when the defense has

access to the evidence. Nothing requires the Commonwealth to sift through

the provided materials on the defendant’s behalf.

C

The Commonwealth was not required to aid counsel’s investigation

Finally, the trial court’s ruling did not distinguish between the fact of

access and the duty of investigation, but instead collapsed them. This too

was erroneous.

The prosecution must disclose a police report containing exculpatory

information, but it need not draw arrows directing counsel’s eyes to the

helpful paragraphs. The Sixth Amendment guarantee of effective assistance

of counsel assumes, since counsel is presumed effective, that the attorney

will read the materials and find the helpful information. This is why

ineffectiveness claims can be premised upon a failure to adequately

investigate and review the materials provided to the defense. Thus, the

onus is on counsel to review all materials to which she has access. See

Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa.Super. 2013) (en banc)

(noting that it can be per se unreasonable for defense attorney to conduct

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no investigation into known witnesses); Hill v. Lockhart, 474 U.S. 52, 59

(1985) (discussing prejudice inquiry “where the alleged error of counsel is a

failure to investigate or discover potentially exculpatory evidence”).

However, the court herein mistakenly transformed the Sixth

Amendment guarantees of effective counsel and confrontation of witnesses

into a generic pre-trial right of discovery. The trial court cites no authority

for that proposition, and we are aware of none. “The Sixth Amendment

concerns implicated in the Brady rule focus on whether the prosecutor's

failure to disclose material exculpatory evidence deprived the defendant of a

fair trial.” Commonwealth v. Johnson, 727 A.2d 1089, 1094 (Pa. 1999)

(citing Agurs, supra); Weatherford v. Bursey, 429 U.S. 545 (1977)

(“There is no general constitutional right to discovery in a criminal case[.]”);

Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (plurality) (“The ability to

question adverse witnesses, however, does not include the power to require

the pretrial disclosure of any and all information that might be useful[.]”).

As the trial court recognized, counsel had a duty to investigate the

supplied material. The court erred by merging counsel’s duty to investigate

with the Commonwealth’s duty to disclose.10 If the Commonwealth is secure

____________________________________________

10
As a general proposition, the Sixth Amendment's guarantee of effective
assistance of counsel requires a lawyer to “undertake reasonable
investigations or make reasonable decisions that render particular
investigations unnecessary.” Commonwealth v. Basemore, 744 A.2d 717,
(Footnote Continued Next Page)

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J-E01001-17

from a post-trial Brady challenge on the grounds that the evidence was

disclosed and accessible to defense counsel, it cannot simultaneously be

precluded from entering portions of that evidence due to sheer speculation

that counsel, despite that equal access, would presumptively fail to examine

that material.11 To hold otherwise would be to invert the presumption of

_______________________
(Footnote Continued)

735 (Pa. 2000) (citing Strickland v. Washington, 466 U.S. 668, 691
(1984)). The trial court failed to recognize that counsel had access to an
obvious source of information in determining what reasonable investigations
were necessary: her client, since he was a party to each call and spoke the
language.
11
Equal access paired with the Commonwealth’s assurances of immateriality
would not necessarily preclude the finding of a Brady violation after trial. In
United States v. Pelullo, 399 F.3d 197 (3d. Cir. 2005), our sister court
discussed the analytical problems under Brady when a defendant raises a
post-trial Brady claim, had access to the material, but was assured that the
material was not helpful:

Conceptually, we find ourselves at the intersection between two
particular branches of the Brady doctrine. Our jurisprudence has
made clear that Brady does not compel the government to
furnish a defendant with information which he already has or,
with any reasonable diligence, he can obtain himself. It is
equally clear, however, that defense counsel's knowledge of, and
access to, evidence may be effectively nullified when a
prosecutor misleads the defense into believing the evidence will
not be favorable to the defendant. See, e.g., United States v.
Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (finding suppression
where government appraised defense counsel of the existence of
certain tapes but also stated that those tapes would be of “no
value”); Hughes v. Hopper, 629 F.2d 1036, 1039 (5th Cir.
1980).

At issue, then, is whether the representations made by the
various government attorneys compel a finding of suppression,
(Footnote Continued Next Page)

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J-E01001-17

effectiveness, create a presumption of prejudice, and discourage disclosure.

Accordingly, for the foregoing reasons, the trial court committed a clear

abuse of discretion in misconstruing the applicable law.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2017

_______________________
(Footnote Continued)

where every other pertinent consideration-i.e., (1) the
mountainous piles of documents, which belonged to Pelullo, (2)
the government's lack of specific knowledge about the existence
of favorable, material evidence, and (3) defendant's extended
access to, and purported knowledge of, particular documents-
weighs against such a finding.

Id. at 213 (quotation marks omitted).

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