Com. v. Muller, J.

J-S51022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES ALLEN MULLER :
:
Appellant : No. 558 EDA 2018

Appeal from the Judgment of Sentence December 14, 2017
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000527-2016

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED MAY 24, 2019

Appellant James Allen Muller appeals from the judgment of sentence

imposed after a jury found him guilty of one count of endangering the welfare

of children (EWOC).1 Appellant claims (1) the verdict was against the weight

of the evidence, (2) the Commonwealth should have been precluded from

moving previously undisclosed text messages and videos into evidence, and

(3) the trial court abused its discretion when imposing an aggravated range

sentence and requiring him to refrain from working and frequenting places

where children under the age of eighteen are known to congregate. 2 We

____________________________________________

1 See 18 Pa.C.S. § 4304(a)(1).

2 We have reordered Appellant’s issues for the purpose of this appeal.
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affirm the conviction and the sentence of imprisonment, but vacate the trial

court’s sentencing condition.

A review of the trial record reveals the following. Appellant and his wife

(Codefendant)3 came to the attention of police on December 20, 2015, after

Appellant reported that their thirteen-year-old adopted daughter

(Complainant) went missing.

Several hours after the initial response, Pennsylvania State Trooper

Keith Brislin arrived at Appellant’s and Codefendant’s home at approximately

4:00 a.m. on December 21, 2015. Trooper Brislin conducted a quick search

of the outside of the home, and obtained Appellant’s and Codefendant’s

permission to search inside of the home. Inside the home, the trooper

discovered a room that lacked “any real furniture” and was “covered in plastic

. . . that you would cover your windows with or something like that.” N.T.,

11/15/17, at 75. Additionally, the trooper observed a small black surveillance

camera on the wall above a door in the room. Another camera was located

downstairs by the entrance to the laundry room. The trooper later learned

that the room was Complainant’s bedroom.

Complainant was located at approximately 10:30 a.m. on December 21,

2015, and taken to a hospital. Trooper Brislin made contact with Complainant

at the hospital, and observed bruises and cuts on Complainant’s body. The

trooper took photographs of the injuries on Complainant’s face, left shoulder,
____________________________________________

3 Codefendant’s appeal is considered in a companion decision at 203 EDA
2018, J-S51021-18.

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and back. Complainant then started to cry and told the trooper that the mark

on her back was a bite mark. Complainant was later interviewed at the

Children’s Advocacy Center and reported that Appellant and Codefendant

mistreated her.

On October 3, 2016, the Commonwealth charged Appellant with one

count of EWOC.4 Appellant initially entered a negotiated guilty plea for a

recommended standard range sentence, but filed a pre-sentence motion to

withdraw his plea, which the trial court granted on March 6, 2017.

Appellant and Codefendant proceeded to a joint jury trial that was held

in November 2017. On the first day of testimony, Complainant described

living in Appellant and Codefendant’s home and the day that led to the

investigation of Appellant and Codefendant.

Complainant stated that Appellant and Codefendant adopted her and

her biological siblings after the death of her mother. Complainant and her

biological siblings lived together with Appellant, Codefendant, and

Codefendant’s biological children.

According to Complainant, Appellant’s and Codefendant’s treatment of

her worsened after her biological siblings left the home. Appellant and

Codefendant locked her in her room upstairs, and she would have to knock on

the door to exit. An alarm was also attached to the doorknob. Complainant

stated that the window of her room was kept open, the room was not heated,

____________________________________________

4 Codefendant was charged on August 2, 2016.

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and she was forced to sleep on the floor. Complainant described occasions

when she snuck out of her room to other areas of the house to sleep near

heaters. Complainant stated she received burns to her arm and stomach from

the heaters.

Complainant testified that Codefendant and Appellant permitted her to

use one plate and one cup. Codefendant urged Complainant to keep the cup

completely full of water, but to drink all of the water in it. However,

Complainant was not allowed to go to the bathroom without asking Appellant

or Codefendant. Complainant explained that the plastic covering was put in

her room because “there were days [she] would have accidents[ and] pee

herself after not going to the bathroom.” N.T., 11/15/17, at 135.

Complainant further testified that she was given peanut butter and jelly

sandwiches for breakfast, lunch, and dinner. However, when she did not take

her medication, do her chores, or do her assignments, she would not eat.

Complainant stated that “there w[ere] days that [she] wouldn’t eat.” Id. at

170-71.

Complainant stated that she and Codefendant would fight with their

hands and that Codefendant disciplined her by hitting her with a leather belt.

Complainant indicated that on one occasion, Codefendant struck her, and

Codefendant’s ring scratched her face, leaving one of the marks photographed

by Trooper Brislin.

Complainant acknowledged that she had personal difficulties while living

with Appellant and Codefendant. Complainant explained that she began

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cutting herself after she and one of her biological brothers had a fight, and

that brother was removed from the home. Complainant admitted that she

would hide hairpins and razors and cut herself with them. Complainant also

admitted that she was hospitalized for cutting herself, depression, and suicidal

thoughts in 2014, and saw a therapist when living with Appellant and

Codefendant.5

Complainant also described one altercation with Appellant and

Codefendant, during which she grabbed a knife and stated she “wanted to

die.” Id. at 179. Although Complainant did not recall injuring Appellant,

Appellant received large cuts to his face. Complainant admitted that she

previously ran away from the home.

As to the events of December 20, 2015, Complainant testified that

Codefendant went out shopping with Complainant’s adoptive sister and left

Complainant at home with Appellant. According to Complainant, Appellant

made her wait to go to bathroom, and she urinated on herself. When

Codefendant returned home, Complainant and Codefendant began fighting.

Codefendant grabbed her by her shirt, dragged her across the floor, and

locked her inside her room. Later, Complainant and Codefendant got into

another fight during which Codefendant bit Complainant on the back.

Codefendant then made Complainant take off her soiled clothes and throw

them away. Codefendant sent Complainant outside in only a t-shirt and
____________________________________________

5 It was undisputed that on one occasion, Codefendant brought Complainant
to the therapist’s office with a plastic bag containing Complainant’s feces.

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shorts. Complainant tried to get back inside once or twice, but then decided

to leave. Complainant stayed overnight in a neighbor’s garage and was found

the next morning.

Before a recess on the second day of trial, the Commonwealth indicated

at a sidebar conference that there was an objection to its intended witness.

Codefendant’s counsel objected to the Commonwealth calling a witness to

testify about an extraction of data from Codefendant’s cellphone. N.T.,

11/16/17, at 118. Codefendant’s counsel noted that an investigator had

downloaded the entire contents of Codefendant’s phone to a flash drive, but

only printed out a “six or seven-line text message from the thousands that

were in there.” Id. The trial court recessed trial.

The following morning, the trial court held a conference with counsel.

See N.T., 11/17/17, at 5-15. During the conference, the Commonwealth

explained that the Pennsylvania State Police initially seized Codefendant’s

phone on February 3, 2016, when executing a search warrant. An investigator

extracted the contents of Codefendant’s phone to a flash drive and then

returned Codefendant’s phone to Appellant on February 10, 2016.6 The

Commonwealth asserted that it was entitled to admit the entire contents of

____________________________________________

6The “Lantern System” was used to extract all of the data from Codefendant’s
phone. The Lantern System also produced a report of the data recovered from
Codefendant’s phone. The contents of Codefendant’s phone and the
accompanying report were placed onto a flash drive. See N.T., 11/17/17, at
18-20. The flash drive is included in the record transmitted to this Court.

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Codefendant’s phone because Codefendant and Appellant were in actual

possession of Codefendant’s phone.

Codefendant’s counsel responded that Codefendant and Appellant lost

Codefendant’s phone when their home was sold at a tax sale and noted that

criminal charges were not filed until August of 2016. Codefendant’s counsel

emphasized that the defense requested discovery, and that in response, the

Commonwealth provided them with two text messages found on

Codefendant’s phone. Codefendant’s counsel asserted that the

Commonwealth’s failure to provide information about the remaining contents

of Codefendant’s phone violated its duty to disclose material information

before trial.

The Commonwealth presented three arguments in support of its proffer.

First, the Commonwealth asserted that because Codefendant had equal access

to the phone, it was under no obligation to disclose the entire contents of

Codefendant’s phone or identify all of the materials it intended to use at trial.7

Second, the Commonwealth suggested that Codefendant was aware that the

Pennsylvania State Police extracted the contents of her phone, but did not file

a motion requesting copies of the extracted data. Third, the Commonwealth

questioned Codefendant’s assertions that Codefendant lost her phone, noting,

____________________________________________

7 The Commonwealth cited Commonwealth v. Maldonodo, 173 A.3d 769
(Pa. Super. 2017) (en banc), to support its arguments based on “equal
access.”

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in part, that Codefendant’s counsel used photographs from Codefendant’s

phone during cross-examination of the Commonwealth’s witnesses.8

Appellant’s counsel joined Codefendant’s objection. Appellant’s counsel

observed that the time for discovery was shorter for Appellant than

Codefendant given Appellant’s plea negotiations. Appellant’s counsel added

that the admission of the evidence was prejudicial because the evidence

lacked context.

The trial court overruled Codefendant’s objections, and the

Commonwealth presented testimony regarding the entire contents of

Codefendant’s phone and an extraction report. The Commonwealth moved

into evidence the flash drive containing a copy of the entire contents of

Codefendant’s phone as Exhibit 21. Additionally, the Commonwealth played

nine videos recovered from Codefendant’s phone during its case-in-chief and

used some of the videos during its closing argument.9
____________________________________________

8 Appellant responded that the photographs she used during cross-
examination were produced and preserved for a prior dependency proceeding
involving Complainant.

9The record does not indicate whether the Commonwealth provided Appellant
with copies of the flash drive, the extraction report, or the specific videos
before presenting them at trial.

Our review reveals that the videos documented Codefendant verbally
disciplining Complainant in a harsh tone. Two of the videos show Complainant
eating ramen noodles with her fingers while Codefendant is heard talking to
Complainant. In addition to playing the videos during its case-in-chief, the
Commonwealth replayed some of the videos during its closing arguments.
Appellant did not object to the specific publication or testimony regarding any

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Appellant and Codefendant testified in their own defense. They denied

abusing Complainant or depriving her of furniture, food, heat, or access to a

bathroom. Appellant and Codefendant asserted that Complainant’s behavior

deteriorated after she lived with them for a year. They stated they were

concerned about Complainant cutting herself, stealing, smoking cigarettes,

urinating and defecating in her room, and being physically aggressive toward

them. Codefendant denied striking Complainant, but acknowledged that she

would place Complainant in a “bear hug” when Complainant became

aggressive.

Codefendant indicated that on the day Complainant left the home,

Complainant urinated in her room near a dresser. Codefendant and one of

Complainant’s adoptive siblings moved the dresser out of the room. However,

an altercation occurred when Codefendant confronted Complainant about

cleaning up the urine. Codefendant stated that Complainant began striking

her, but that she managed to place Complainant in a bear hug until

Complainant calmed down.

Codefendant testified that she went to her room to rest after the

altercation. When Appellant told Codefendant that Complainant went outside

to throw away her soiled clothes, Codefendant became worried because

Complainant previously ran away from home. Appellant went back outside,

____________________________________________

of the videos or the Commonwealth’s use of the videos at trial, and has not
identified the specific portions the Commonwealth played at trial.

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J-S51022-18

but Complainant was no longer there. Codefendant and Complainant’s

adoptive sibling went out to search for Complainant, and Appellant called

911.10

Appellant and Codefendant both testified that Complainant previously

had a mattress in her room, but they removed it because Complainant hid

cutting implements and other stolen items in it. They asserted that they

replaced the traditional mattress with an air mattress.

On November 20, 2017, the jury found Appellant guilty of EWOC.11 On

December 14, 2017, the trial court sentenced Appellant to an aggravated

range sentence of twelve to twenty-four months’ imprisonment. The trial

court also imposed the condition that Appellant “refrain from working at or

frequenting places where children under the age of eighteen are known to

congregate.” Sentencing Order, 12/14/17, at 2.

On December 22, 2017, Appellant filed timely post-sentence motions

challenging, in relevant part, the weight of the evidence and the trial court’s

sentence. The trial court denied the motions on January 29, 2018.

____________________________________________

10 During cross-examination of Codefendant, the Commonwealth also
questioned Codefendant about receiving social security benefits for
Complainant. N.T., 11/20/17, at 85-87.

11During closing arguments, the Commonwealth emphasized that Appellant
was guilty of EWOC for “failing to protect [Complainant] and care for
[Complainant] while [Codefendant] was physically assaulting her and . . . for
the ongoing deprivation . . . .” N.T., 11/20/17, at 210. The Commonwealth
characterized Appellant as the “silent partner.” Id. The jury deliberated for
approximately one-and-a-half hours before finding Appellant and Codefendant
guilty.

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Appellant filed a timely notice of appeal on February 22, 2018, and

complied with the court’s order to file and serve a Pa.R.A.P. 1925(b)

statement. The court filed a Rule 1925(a) opinion.

Appellant presents three issues, which we have reordered as follows:

1. Whether the jury verdict was against the weight of the evidence
in that it was based primarily on emotion rather than on factual
evidence.

2. Whether the Commonwealth violated . . . Appellant’s due
process by not providing contents of a flash drive containing data
extracted from [Codefendant]’s cell phone after discovery
requests were made, and whether the [t]rial [c]ourt erred in
allowing the Commonwealth to provide only two or three text
messages from the flash drive and to play parts of videos rather
than entire video clips.

3. Whether the [t]rial [c]ourt erred in considering discretionary
aspects of sentencing and in including the provision in the
Sentencing Order that . . . Appellant “refrain from working and
frequenting places where children under the age of eighteen are
known to congregate.”

Appellant’s Brief at 8.

In his first issue, Appellant suggests that he is entitled to a new trial

because the verdict was against the weight of the evidence. Id. at 29-30. By

way of background, Appellant challenged the weight of the evidence in his

post-sentence motion, asserting that “there [wa]s no credible evidence to

establish the elements of [EWOC] based on the record as against [Appellant],

and therefore the verdict [wa]s against weight of the evidence.” Post

Sentence Mot., 12/22/17, at 21. The trial court denied the motion, reasoning:

The jury was free to assess the credibility of each witness as they
testified and was free to weigh the evidence as it was presented

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to them. Furthermore, the jury had the opportunity to assess
Appellant’s credibility as he presented his own testimony and to
weigh the evidence that defense counsel presented on his behalf.

Trial Ct. Op., 4/20/18, at 10. The court also emphasized that it instructed the

jury to make its decision based on the evidence. Id.

On appeal, Appellant insists that the verdict was the product of emotion

rather than the evidence. Appellant’s Brief at 30. In support, Appellant

focuses on the admission of the videos from Codefendant’s phone and portions

of the Commonwealth’s closing argument, which Appellant alleges improperly

diverted the jury from deciding the case based on the evidence. Id. at 30-

31. Appellant’s argument ends with a citation to a case involving a claim of

prosecutorial misconduct.12 Id. at 31 (citing Commonwealth v. DeJesus,

860 A.2d 102, 114 (Pa. 2004), for the proposition that the Commonwealth’s

closing argument should be limited to the evidence and legitimate inferences

from the evidence).

It is well settled that

[a] claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the verdict
was against the weight of the evidence. It is well settled that the
[fact-finder] is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the [fact-finder’s] verdict is so contrary to the evidence that it
shocks one’s sense of justice. In determining whether this
____________________________________________

12We note that at trial, Appellant did not raise a prosecutorial misconduct
objection to the Commonwealth’s closing argument. See N.T., 11/20/17, at
214, 221, 230; Pa.R.A.P. 302(a).

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standard has been met, appellate review is limited to whether the
trial judge’s discretion was properly exercised, and relief will only
be granted where the facts and inferences of record disclose a
palpable abuse of discretion.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

Moreover,

[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court
is to determine that notwithstanding all the evidence, certain facts
are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.

Id. (citation omitted).

Following our review of the record, Appellant’s arguments, and the

relevant law, we find no merit to Appellant’s issue. Notably, Appellant fails to

acknowledge or discuss Complainant’s testimony. As noted by the trial court,

Complainant’s testimony established that she endured deprivations and abuse

while living with Appellant and Codefendant. Although Appellant and

Codefendant denied Complainant’s allegations, the trial court properly

concluded that it was within province of the jury, as the finder of fact, to credit

Complainant’s testimony and determine that Appellant violated his duty to

protect and care for Complainant. See id.; see also 18 Pa.C.S. § 4304(a)(1).

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Accordingly, the trial court did not abuse its discretion in rejecting Appellant’s

challenge to the weight of the evidence.

In his next issue, Appellant contends that the Commonwealth violated

his due process rights by failing to disclose all of the text messages and videos

recovered from Codefendant’s phone before trial. As noted above, the parties

litigated the Commonwealth’s proffer of text messages and videos from

Codefendant’s phone on the third day of trial, and the trial court overruled

Appellant’s objections.

The trial court, in its Rule 1925(a) opinion, explained its ruling as

follows:

At trial, Detective Christian Robinson testified that he was
contacted by Corporal Smith to run a forensic extraction on
[Codefendant’s] cell phone. He also testified as to how the data
was obtained from [Codefendant’s] cell phone using the Lantern
software system. He testified that the extraction report was
performed on February 8, 2016. He testified that the extraction
process would have no effect on or alter the contents of
[Codefendant’s] cell phone in any way. He testified that the
contents of the reports generated by the Lantern software system
would be an exact replica of the contents of [Codefendant’s] cell
phone. He testified that after he had completed the forensic
extraction, he returned [Codefendant’s] cell phone in its original
state to Corporal Smith. Finally, he testified that he copied the
reports generated by the Lantern software system in their entirety
onto the flash drive used by the Commonwealth at trial.
[Codefendant’s] cell phone was returned to Appellant on February
10, 2016.

The Commonwealth has no duty to provide evidence in a form that
the defendant demands for the convenience of the defense.
Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super.
2015). “If the Commonwealth is secure from a post-trial Brady[13]
____________________________________________

13 Brady v. Maryland, 373 U.S. 83 (1963).

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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. [Maldonodo, 173
A.3d at 783-84]. . . .

The thumb drive contained the entire contents of [Codefendant]’s
cell phone; therefore, when the cell phone was returned to
Appellant by the state police on February 10, 2016, the evidence
was equally available to Appellant. The evidence was no longer in
the “exclusive control” of the Commonwealth. This is not an issue
of the Commonwealth’s constitutional duty of disclosure.

Although Appellant argued during trial that the cell phone was
[Codefendant]’s and therefore he may have not had equal access
to it, we would point out that Appellant participated in making
those videos. Appellant used [Codefendant]’s cell phone to film
the videos. He was aware of what was on [Codefendant’s] cell
phone before it was even seized by the state police. He was
subsequently aware that the Commonwealth had the entire
contents of [Codefendant]’s cell phone well before trial
commenced.

During trial, the Commonwealth noted that discovery was
provided to [Codefendant] on January 24, 2017. Counsel for
Appellant noted that she was not sure whether this was the date
that discovery was provided to [Codefendant] only or whether it
was also provided to her client. However, we would note that
Appellant did not file a motion to compel or specifically request
that the Commonwealth disclose the entire contents of the thumb
drive or the report of the data extracted after [Codefendant’s]
phone was seized. Furthermore, based on . . . testimony as to
the extraction process, the contents of the cell phone were not
altered in any way before it was returned to Appellant. Therefore,
the evidence was disclosed and accessible to Appellant and
counsel.

Once the Commonwealth had put the entire contents of the thumb
drive into evidence, Appellant was free to display other text
messages and play other videos and/or parts of videos previously
published by the Commonwealth for the jury’s consideration.

Trial Ct. Op. at 8-10.

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On appeal, Appellant challenges the factual basis of the trial court’s

conclusion in the Rule 1925(a) opinion that he possessed Codefendant’s

phone. Appellant’s Brief at 27-29. Appellant concedes that the Pennsylvania

State Police returned Codefendant’s phone to him in February 2016. Id. at

27. However, Appellant emphasizes the Commonwealth did not initiate

criminal proceedings against him until October 2016. Id. at 29. Appellant

suggests that sometime after the Pennsylvania State Police returned

Codefendant’s phone, but before trial, Codefendant’s phone was lost, when he

“lost his home and its contents as a result of a tax sale on the property.”14

Id. at 27-28. Lastly, Appellant notes that Codefendant owned the phone. Id.

Additionally, Appellant contends that he suffered prejudice because the

videos were published to the jury and not played in their entirety. Id. at 27.

According to Appellant, “[t]he selected videos portrayed [Codefendant] in a

very unflattering matter” and were not directly relevant to any of the charges

against Appellant or Codefendant. Id. at 27-28. In a single sentence,

Appellant avers that Codefendant’s phone contained exculpatory evidence.

Id. at 28.

“Decisions involving discovery matters are within the sound discretion

of the trial court and will not be overturned absent an abuse of that discretion.”

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation

____________________________________________

14 Appellant does not indicate when he was denied access to his home or the
phone, and the record does not indicate whether the tax sale occurred before
or after charges were filed in this matter.

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and quotation marks omitted), appeal denied, 189 A.3d 986 (Pa. 2018). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id. (citation and quotation marks

omitted).

The purpose of the discovery rules is to prevent a trial by ambush that

violates a defendant’s right to due process. Commonwealth v. Ulen, 650

A.2d 416, 419 (Pa. 1994) (discussing the prior version of Pa.R.Crim.P. 573).

Pennsylvania Rule of Criminal Procedure 573 provides, in relevant, part:

(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 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.

(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the possession
or control of the attorney for the Commonwealth;

* * *

(e) any results or reports of scientific tests, expert opinions,
and written or recorded reports of polygraph examinations
or other physical or mental examinations of the defendant
that are within the possession or control of the attorney for
the Commonwealth; [and]

(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence[.]

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* * *

(2) Discretionary With the Court.

(a) In all court cases, except as otherwise provided in Rules
230 (Disclosure of Testimony Before Investigating Grand
Jury) and 556.10 (Secrecy; Disclosure), if the defendant
files a motion for pretrial discovery, the court may order the
Commonwealth to allow the defendant’s attorney to inspect
and copy or photograph any of the following requested
items, upon a showing that they are material to the
preparation of the defense, and that the request is
reasonable:

* * *

(iv) any other evidence specifically identified by the
defendant, provided the defendant can additionally
establish that its disclosure would be in the interests of
justice.

* * *

(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.

Pa.R.Crim.P. 573(B)(1)(a)(e)-(f), (2)(a)(iv), (E).

The duties to disclose information imposed by Brady and Rule 573 are

overlapping, but they are not identical. See Maldonodo, 173 A.3d at 774;

see also Commonwealth v. Sullivan, 820 A.2d 795, 802-03 (Pa. Super.

2003). The focus of Brady is the prompt disclosure of evidence that is

favorable to the defense, which is incorporated in Rule 573(b)(1)(a). Rule

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573 is broader to the extent it requires disclosure of inculpatory information.

See Sullivan, 820 A.2d at 803-804.

Nevertheless, this Court has often analyzed claims involving Rule 573

using principles from Brady. Id. For example, in the context of Brady, it is

well-settled that “no Brady violation occurs where the parties had equal

access to the information or if the defendant knew or could have uncovered

such evidence with reasonable diligence.” Commonwealth v. Morris, 822

A.2d 684, 696 (Pa. 2003) (citation omitted). In the context of Rule 573, this

Court has also noted: “Where evidence is equally accessible to both the

prosecution and the defense, the latter cannot employ [the discovery rules]

against the Commonwealth.” See Santos, 176 A.3d at 883 (citations

omitted).

Furthermore, Rule 573 does not require the Commonwealth to divulge

its trial tactics or how it may use certain information, and defense counsel has

a duty to investigate available information for possible evidence. See

Maldonodo, 173 A.3d at 783-84; Commonwealth v. Monahan, 549 A.2d

231, 235 (Pa. Super. 1988). Similarly, Rule 573 does not entitle a defendant

to information in a form most helpful or convenient to the defendants. See

Maldonodo, 173 A.3d at 783; Robinson, 122 A.3d at 373-74. Nevertheless,

courts have cautioned that “[b]ecause we are dealing with an inevitably

imprecise standard [regarding materiality], and because the significance of an

item of evidence can seldom be predicted accurately until the entire record is

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complete, the prudent prosecutor will resolve doubtful questions in favor of

disclosure.” Maldonodo, 173 A.3d at 781-82 (citation omitted).

Even if the Commonwealth violates the disclosure requirements of Rule

573,

[t]he trial court has broad discretion in choosing the appropriate
remedy for a discovery violation. . . . A defendant seeking relief
from a discovery violation must demonstrate prejudice. A
violation of discovery “does not automatically entitle [an]
appellant to a new trial.” Rather, [the defendant] must
demonstrate how a more timely disclosure would have affected
his trial strategy or how he was otherwise prejudiced by the
alleged late disclosure.

Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citations

omitted). This Court has suggested that in most cases, “[a] continuance is

appropriate where the undisclosed statement or other evidence is admissible

and the defendant’s only prejudice is surprise.” Commonwealth v. Smith,

955 A.2d 391, 395 (Pa. Super. 2008) (en banc) (citation omitted).

Instantly, as noted by the trial court, Appellant was aware that the

Pennsylvania State Police seized and analyzed Codefendant’s phone, and that

the Commonwealth recovered evidence from Codefendant’s phone.

Additionally, the record supports the trial court’s findings that Codefendant’s

phone was returned to Appellant before criminal charges were filed, and that

Appellant was aware that Codefendant’s phone could have contained

unfavorable evidence.

Yet, there is also no dispute that Appellant requested discovery after the

charges were filed, and that the Commonwealth had in its possession the

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Lantern report and the entire contents of Codefendant’s phone. In response

to Appellant’s request for discovery, the Commonwealth provided copies of

two text messages that it extracted from Codefendant’s phone. The record

contains no indication that the Commonwealth provided Appellant with a copy

of the extraction report or a copy of the flash drive in response to

Codefendant’s request for pretrial discovery, or before seeking admission of

the contents of Codefendant’s phone at trial.

Under these circumstances, we do not read Maldonodo and Robinson

as broadly as the Commonwealth and the trial court. In Maldonado and

Robinson, the Commonwealth disclosed information before trial, i.e.,

recordings of the defendant’s Spanish language prison calls in Maldonodo,

and a recording of a victim’s interview in Robinson. See Maldonodo, 173

A.3d at 771; Robinson, 122 A.3d at 373. In Maldonodo, the Commonwealth

specifically identified two phone calls it believed were inculpatory, but

disclosed all of the recordings the defendant’s 466 prison phone calls.

Maldonodo, 173 A.3d at 771-72. The issue in those cases was whether the

Commonwealth had duties to provide the defense with additional information,

such as a certified translations of the prison calls or a transcript of the video

recording. See Maldonodo, 173 A.3d at 781; Robinson, 122 A.3d at 373.

This Court, in both Maldonodo and Robinson, reversed the trial court’s

pre-trial ruling precluding the Commonwealth from presenting evidence based

on the failure to provide additional information. See Maldonodo, 173 A.3d

at 771; Robinson, 122 A.3d at 369. In so doing, this Court noted that the

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Commonwealth had no duty to assist the defendant in finding evidence

favorable to the defendant when the Commonwealth provided the information

to the defense. See Maldonodo, 173 A.3d at 783; Robinson, 122 A.3d at

371.

The present case, however, raises different issues and facts than those

addressed in Maldonodo and Robinson. First, the information here

contained evidence that was unfavorable to the defense. Second, the

Commonwealth did not provide the information in its possession during

discovery. Indeed, there is no indication in the record that the Commonwealth

even provided Appellant and Codefendant’s counsel with a courtesy copies of

the flash drive when it moved the contents of Codefendant’s phone into

evidence. Third, unlike Maldonodo, the Commonwealth initially indicated

that it intended to use two text messages at trial, but then moved the entire

contents of Codefendant’s phone into evidence.

Therefore, we do not find Maldonodo and Robinson to be controlling

authorities in this case. Accordingly, we do not agree with the trial court’s

legal reasons for excusing the Commonwealth of any duty to disclose

unfavorable evidence under Rule 573.

Even if the Commonwealth violated Rule 573, however, Appellant did

not assert any unfair prejudice to his ability to form or present his defense.

See Brown, 200 A.3d at 993; accord Smith, 955 A.2d at 395. The fact that

Appellant was, or should have been, aware of the additional unfavorable

videos on the phone belies Appellant’s claim of surprise. Moreover, Appellant

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did not request a continuance to review the additional evidence. Under these

circumstances, we conclude Appellant has not established that the admission

of the entire contents of Codefendant’s phone constituted reversible error

under Rule 573. See Santos, 176 A.3d at 882.

Appellant next challenges the trial court’s sentence. Appellant presents

two claims which we address separately.

Appellant initially claims that the trial court’s aggravated range sentence

of one to two years’ incarceration was unreasonable.15 Appellant argues that

“[t]he trial court did not impose a sentence that would reasonably meet [his]

rehabilitative needs.” Appellant’s Brief at 17. Appellant notes that the trial

court had two presentence investigation reports (PSI) prepared—one following

his plea, and one following trial. Id. at 20. According to Appellant, he was

interviewed for the first PSI, but not for the second. Id. Appellant asserts

that “[t]he only significant change regarding . . . Appellant’s status during the

intervening months between the preparation of the [PSIs] was . . . Appellant’s

withdrawal of his guilty plea and decision to have a jury trial.” Id. at 31.

Appellant also suggests that the trial court could have ordered him to serve

his sentence in a county correctional facility as opposed to a state correctional
____________________________________________

15Appellant’s conviction of EWOC was graded as a misdemeanor of the first
degree, which carries a maximum term of five years’ incarceration. See 18
Pa.C.S. § 4304(a)(1), (b)(1)(i); see also 18 Pa.C.S. § 1104(1). Appellant’s
conviction carried an offense gravity score of five and his prior record score
was zero. See 204 Pa.Code § 303.15. The guidelines, therefore,
recommended a minimum sentence between restorative sanctions and nine
months’ imprisonment, plus or minus three months for aggravating or
mitigating circumstances. See 204 Pa.Code § 303.16(a).

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institution. Id. at 13, 19-20, 23. He notes that in light of the fact that he

was in custody for 497 days before sentencing, he has “little to no ability to

seek parole” before serving his maximum sentence. Id.

It is well settled that

[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.[ ] § 9781(b).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some

citations omitted), appeal denied, 172 A.3d 592 (Pa. 2017). “A substantial

question exists only when the appellant advances a colorable argument that

the sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Id. (citation and quotation marks

omitted).

Here, Appellant preserved his challenges to the sentence of

imprisonment in a post-sentence motion, timely appealed, and set forth a

concise statement of the reasons relied on for allowance of appeal. See id.

However, we find no substantial questions arising from Appellant’s assertions

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that the trial court could have ordered him to serve his sentence in a county

facility or that he will likely serve his entire sentence in prison. See

Commonwealth v. Lee, 876 A.2d 408, 413 (Pa. Super. 2005). Appellant’s

arguments that the trial court imposed an aggravated range sentence based

on his decision to withdraw his plea and without considering Appellant’s

mitigating circumstances do raise substantial questions, and we consider

those claims. See Commonwealth v. Moury, 992 A.2d 162, 170-71 (Pa.

Super. 2010).

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

Section 9781(d) sets forth the factors considered by this Court in

evaluating the reasonableness of a sentence:

(d) Review of record.—In reviewing the record the appellate
court shall have regard for:

(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.

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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d). Where a presentence investigation report exists, we

shall “presume that the sentencing judge was aware of the relevant

information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Walls, 926 A.2d 957, 967 n.7 (Pa. 2007) (citation omitted). “Even if a

sentencing court relies on a factor that should have not been considered, there

is no abuse of discretion when the sentencing court has significant other

support for its departure from the sentencing guidelines.” Commonwealth

v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008) (citations omitted);

Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa. Super. 2006).

Instantly, the trial court stated its reasons for imposing a sentence of

one to two years’ imprisonment as follows:

The [c]ourt has had the benefit in this matter of a [PSI] and the
record presented. The [c]ourt has also had the benefit to review
the character reference letters that have been provided by
defense counsel today and those will be included with the [PSI] in
this matter. The [c]ourt would note that it was the presiding
Judge over the Jury Trial in this matter and the Jury concluded
that [Appellant] was guilty of the sole [c]harge of [EWOC]. The
[c]ourt notes among other things that the crime committed in this
matter although not complete does consist of acts of omission.
There were acts however that I believe the evidence would
support [acts] of commission. The [c]ourt notes based upon that
that it found as well that [Appellant] did not take proper action
when presented with [Codefendant]’s physical and mental abuse
of [Complainant]. The evidence of false imprisonment, unlawful
restraint in the [c]ourt’s estimation are indeed abnormal and the
evidence and that would apply to [Codefendant] but the [EWOC]

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[c]harge is tied into [Codefendant]’s actions and the [c]ourt finds
the evidence of the [EWOC] in this matter to be likewise abnormal
from an [EWOC] case the [c]ourt may normally see coming
through the Court system.

N.T., 12/14/17, at 12-13.

In its sentencing order, the trial court further found an aggravated range

sentence was appropriate because (1) Appellant took no responsibility for the

offense and blamed Complainant, (2) Complainant was vulnerable due to her

youthful age while she was in Appellant’s care, (3) Appellant showed no

remorse towards Complainant’s injury, and (4) a lesser sentence would

depreciate the seriousness of the offense. Order, 12/15/17.

Following our review, we find no merit to Appellant’s contention that the

trial court failed to consider Appellant’s mitigating circumstances. See N.T.,

12/14/17, at 12-13; see also Walls, 926 A.2d at 967 n.7. We also agree

with the trial court’s determination that the instant case presented an unusual

case of EWOC based on Appellant’s acts and omissions and his failure to

protect Complainant from Codefendant. See N.T., 12/14/17, at 13.

Appellant’s suggestion that the trial court sentenced him in the aggravated

range based on his decision to proceed to trial lacks record support.

We acknowledge that the trial court’s order cited inappropriate reasons

for sentencing in the aggravated range, including fact that Complainant was

vulnerable due to her youthful age and was in the care of Appellant. See

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (en banc)

(noting that “when fashioning a sentence, a sentencing court may not ‘double

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J-S51022-18

count’ factors already taken into account in the sentencing guidelines”

(citations omitted)). Nevertheless, having reviewed the record as a whole,

we conclude that the trial court’s sentence was reasonable in light of its

findings at the sentencing hearing, and that the court did not impermissibly

rely on an improper fact. See 42 Pa.C.S. § 9781(d); Sheller, 961 A.2d at

192. Accordingly, Appellant’s challenge to the sentence of imprisonment

merits no relief.

Appellant next claims the trial court abused its discretion in requiring

that he refrain from working and frequenting places where children under the

age of eighteen congregate. Appellant’s Brief at 24. Appellant, in a single

sentence in his brief, asserts that this condition was “vague and burdensome

as it is likely to hinder his ability to gain employment and move forward with

his life following a lengthy incarceration.” Id.

As a general matter, this Court has considered a challenge to a condition

imposed as a part of parole or probation as a challenge to the discretionary

aspect of the sentence. See Commonwealth v. Hermanson, 674 A.2d 281,

282 (Pa. Super. 1996); Commonwealth v. Koren, 646 A.2d 1205, 1207 (Pa.

Super. 1994). A claim that a probation condition is overbroad goes to the

discretionary aspects of a sentence. See Commonwealth v. Houtz, 982

A.3d 537, 538 (Pa. Super. 2009); Commonwealth v. Hartman, 908 A.2d

316, 319 (Pa. Super. 2006).

However, the statutory authority of a court to impose a challenged

condition raises legality of sentence concerns. See Commonwealth v.

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Melvin, 103 A.3d 1, 52 (Pa. Super. 2014) (en banc). “Challenges to an illegal

sentence cannot be waived and may be reviewed sua sponte by this Court.”

Id. (citations omitted).

The Sentencing Code provides:

(a) General rule.—In determining the sentence to be imposed
the court shall, except as provided in subsection (a.1), consider
and select one or more of the following alternatives, and may
impose them consecutively or concurrently:

(1) An order of probation.

(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine.

(6) County intermediate punishment.

(7) State intermediate punishment.

42 Pa.C.S. § 9721(a).

Notably, Section 9756, which governs the imposition of a sentence of

total confinement, contains only a limited provision for setting conditions for

a “reentry plan.” See 42 Pa.C.S. § 9756(b)(3), (e). Section 9756(e) defines

a reentry plan as “a release plan that may include drug and alcohol treatment,

behavioral health treatment, job training, skills training, education, life skills

or any other condition deemed relevant by the court.” 42 Pa.C.S. 9756(e).

Section 9756(b)(3) states, in relevant part:

Except where the maximum sentence imposed is two years
or more, and except where a mandatory minimum sentence of
imprisonment or total confinement is required by law, the court

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shall, at the time of sentencing, state whether or not the
defendant is eligible to participate in a reentry plan at any time
prior to the expiration of the minimum sentence or at the
expiration of a specified portion of the minimum sentence.

42 Pa.C.S. § 9756(b)(3).

By contrast, Section 9754 authorizes a trial court to impose conditions

of probation, including requiring a defendant to “satisfy any other conditions

reasonably related to the rehabilitation of the defendant and not unduly

restrictive of his liberty or incompatible with his freedom of conscience.” 42

Pa.C.S. § 9754(c)(13). Similarly, Section 9763, permits the trial court to

impose conditions on a defendant’s sentence to county intermediate

punishment to “do other things reasonably related to rehabilitation.” 42

Pa.C.S. § 9763(b)(15); Melvin, 103 A.3d at 53.

In Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009)

this Court considered a trial court’s sentencing order authorizing random

searches of a defendant’s residence as a condition of parole. We explained:

If no statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An illegal
sentence must be vacated. In evaluating a trial court’s
application of a statute, our standard of review is plenary
and is limited to determining whether the trial court
committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-[02] (Pa.
Super. 2006) (internal citations omitted).

In the instant matter, the language in the sentencing order is as
follows:

AND NOW, this 18th day of March, 2008, it is hereby
ORDERED that as a condition of [the defendant’s] probation
and/or parole on the charge of Violation of the Uniform

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Firearms Act (VUFA), section 6105, and for the duration of
[the defendant’s] probation and/or parole period, [the
defendant] is subject to random searches of his/her
residence. The search will be limited to the space occupied
by [Appellant]. The searches will be conducted by the
agents of the Gun Violence Task Force.

Sentencing Order 3/18/08.

First, we note that the trial court did not sentence [the defendant]
to probation; thus, there can be no probation conditions.
Secondly, because the court sentenced [the defendant] to a
maximum term of incarceration of two or more years, [the
defendant]’s parole would be under the exclusive supervision of
the Pennsylvania Board of Probation and Parole (“PBPP”) and not
the Court of Common Pleas. 61 P.S. § 331.17, and see
Commonwealth v. Camps, 772 A.2d 70, 74 (Pa. Super. 2001)
(holding that “It is well settled that the Pennsylvania Board of
Probation and Parole has exclusive authority to determine parole
when the offender is sentenced to a maximum term of
imprisonment of two or more years.”). Therefore, any condition
the sentencing court purported to impose on [the defendant]’s
state parole is advisory only. See 61 P.S. § 331.18 (A judge in his
discretion may make at any time any recommendation he may
desire to the board respecting the person sentenced and the term
of imprisonment said judge believes such person should be
required to serve before a parole is granted to him, but a
recommendation made by a judge as aforesaid respecting the
parole or terms of parole of such person shall be advisory only,
and no order in respect thereto made or attempted to be made as
a part of a sentence shall be binding upon the board in performing
the duties and functions herein conferred upon it.) (emphasis
added).

Id. at 1211-12 (alterations in original omitted); accord Commonwealth v.

Coulverson, 34 A.3d 135, 141-42 (Pa. Super. 2011)

Here, as in Mears, the trial court sentenced Appellant to a sentence of

total confinement with a maximum of two years’ imprisonment. That sentence

required supervision by the Pennsylvania Board of Probation and Parole. In

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imposing that sentence, the court divested itself of the statutory authority to

add a probation condition to its sentence under Section 9754. See Mears,

972 A.2d a 1211-12. The court, furthermore, lacked the statutory authority

to impose a requirement of parole. See id. The court provided no other

statutory basis to impose a sentencing condition under these circumstances,

and our own review reveals no basis for the trial court to have done so.16

Therefore, we are constrained to vacate the sentencing condition prohibiting

Appellant from working and frequenting places where children under the age

of eighteen congregate as illegal.17 See id.

Therefore, we vacate the condition that prohibits Appellant from working

or frequenting places where children under the age of eighteen are known to

congregate. However, our decision does not disturb the overall sentence, and

there is no need to remand this matter for resentencing. See Melvin, 103

A.3d at 56.

Judgment of sentence affirmed in part and vacated in part. Jurisdiction

relinquished.

____________________________________________

16 The EWOC statute requires a court to “consider ordering an individual
convicted of an offense under this section to undergo counseling,” but does
not authorize the imposition of any other conditions. See 18 Pa.C.S. §
4304(c).

17Even if the trial court’s condition was advisory, we also find the language of
the condition vague. In particular, the phrase “frequenting places” did not
sufficiently define the conduct the court would have found offensive. The
phrase “places where children . . . are known to congregate” would also not
have sufficiently apprised Appellant of the areas from which he was precluded.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2019

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