J-A20007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEITH CERQUEIRA
Appellant No. 1592 WDA 2015
Appeal from the Judgment of Sentence October 5, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-SA-0000099-2015
BEFORE: BOWES, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
Keith Cerqueira appeals from the October 5, 2015 judgment of
sentence that reinstated the decision of a magisterial district judge wherein
the judge imposed a fine of $300 due to Appellant’s violation of the
Masontown Borough Code § 50-3 (Prohibition of dangerous buildings). We
affirm.
The pertinent facts follow. On May 29, 2015, William Johnson of R.W.
Sleighter, LLC, an engineer for Masontown Borough, inspected Appellant’s
property at 4 River Avenue, Masontown, Pennsylvania. Appellant and
Masontown Borough Police Chief Joseph Ryan were present. There were two
structures on the property. The first one examined was a two-story wooden
framed residence with attached garage; it had water damage to the ceiling
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plaster on the first and second floors. A shed roof attached to the front of
the residence had moderate damage so Mr. Johnson indicated that the roof
should be repaired, replaced, or removed. Mr. Johnson opined that this
residence was in overall fair condition.
The other structure was an unoccupied two-story timber-framed
garage containing apartments on the second floor and an attic and with two
concrete masonry structures attached to it. Mr. Johnson’s review of that
building revealed that both the header of the garage door and a support
beam were failing. The header’s condition rendered the upper balcony
unsafe. In addition, the inspector observed that the wooden stairs leading
to the second floor apartments as well as the roof were collapsing and
dangerous. Mr. Johnson also saw these defects on the exterior of the
apartment building: 1) broken and unsecured windows; 2) failing or missing
exterior finish materials; and 3) loose or absent soffit, fascia and shingles.
The interior inspection revealed that the ceiling and wall plaster were falling
down, and there was water infiltration.
Mr. Johnson concluded that the structure was a dangerous building, as
defined in the Masontown Borough Code § 50-1. On June 4, 2015,
Masontown Police Chief Joseph C. Ryan notified Appellant that the property
in question was a nuisance and unsafe and ordered Appellant to remedy the
conditions leading to its classification as a dangerous building.
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Six weeks later, on July 17, 2015, Appellant was charged with the
summary offense of violating the Masontown Code due to his failure to
comply with the repair order that accompanied the June 4, 2015 notice. On
September 2, 2015, represented by David A. Colecchia, Esquire, Appellant
appeared before a magisterial district judge, was found guilty, and was fined
$300. After Appellant filed a notice of summary appeal, the appeal hearing
was scheduled for October 2, 2015.
On September 29, 2015, three days before the scheduled hearing,
Appellant asked for discovery and requested a continuance based upon Mr.
Colecchia’s need to appear at a social security hearing. In the discovery
motion, Appellant also petitioned for habeas corpus relief, claiming that the
Masontown Code violated his due process rights.
The discovery request was denied since general discovery is not
permitted in summary matters. Commonwealth v. Lutes, 793 A.2d 949
(Pa.Super. 2002). The district attorney objected to the continuance in that
the dangerous building had yet to be repaired. The continuance was denied
for two reasons: 1) Mr. Colecchia knew about the scheduling conflict for
nearly one month and yet filed a continuance request three days before the
summary appeal; and 2) the grant of a continuance would have burdened
Masontown “with a dilapidated property.” Trial Court Opinion, 12/14/15, at
3.
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Appellant appeared pro se at the October 2, 2015 hearing. After his
request for a continuance was denied and he refused to participate in the
proceeding, the trial court reinstated the judgment of the magisterial district
judge. Appellant thereafter simultaneously filed a motion for
reconsideration, which was denied, and a notice of appeal. On appeal,
Appellant raises two averments:
1. Whether the Masontown Borough Code prohibiting dangerous
structures is unconstitutional as violating the Due Process Clause
of the 14th Amendment to the United States Constitution and
the Due Process requirements of the Pennsylvania Constitution,
because it lacks an administrative remedy for the person to
challenge the need for a repair or the timing of a repair as it
contained in previous versions.
2. Whether the disclosure requirements of Brady v. Maryland
373 U.S. 83 (1963) apply in a Summary offense.
Appellant’s brief at 4.1
Appellant first claims that he was denied due process because, in its
present enactment, Chapter 50 of the Masontown Code, in contrast to its
previous iteration, did not give him the opportunity to administratively
contest the inspector’s conclusions. “In terms of procedural due process,
government is prohibited from depriving individuals of life, liberty, or
property, unless it provides the process that is due. . . . [T]he basic
elements of procedural due process are adequate notice, the opportunity to
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1
These issues were presented in the motion for reconsideration and a
1925(b) statement.
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be heard, and the chance to defend oneself before a fair and impartial
tribunal having jurisdiction over the case.” Commonwealth v. Turner, 80
A.3d 754, 764 (Pa. 2013).
Herein, Appellant was present at the inspection and received a copy of
Mr. Johnson’s report and a repair order on June 4, 2015. He thus had notice
of the conditions deemed dangerous by the inspection and the actions
necessary to remedy the situation. He was cited six weeks later, and thus
had adequate notice before the citation was issued.
As to the opportunity to be heard and defend himself, Appellant
provides no legal support for his proposition that the due process clause
requires that a person to be afforded administrative remedies. Despite his
inability to ask for review by the borough council, Appellant had a full and
fair opportunity to be heard before the magisterial district judge as well as
by means of appeal to the court of common pleas, which are two fair and
impartial tribunals with jurisdiction over summary violations. At those
proceedings, Appellant had the chance to contest that his building was
dangerous and that the ordered repairs were necessary. Since Appellant
had both notice and an opportunity to be heard by a fair and impartial
tribunal with jurisdiction, we reject Appellant’s claimed due process violation.
In his second claim on appeal, Appellant challenges the trial court’s
denial of his discovery request. “Generally, on review of an order granting
or denying a discovery request, an appellate court applies an abuse of
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discretion standard.” Commonwealth v. Mendez, 74 A.3d 256, 260
(Pa.Super. 2013) (citation omitted). Appellant maintains that Brady
“mandates discovery in all matters including all summary cases.”
Appellant’s brief at 12. In Commonwealth v. Williams, 86 A.3d 771 (Pa.
2014), our Supreme Court observed that Brady did not create a general
right to discovery in a criminal case. In criminal matters, discovery is
governed by Pa.R.C.P. 573,2 which both incorporates Brady and affords a
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2
The rule in question requires the following 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;
(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;
(c) the defendant's prior criminal record;
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(d) the circumstances and results of any
identification of the defendant by voice, photograph,
or in-person identification;
(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;
(f) any tangible objects, including documents,
photographs, fingerprints, or other tangible
evidence; and
(g) the transcripts and recordings of any electronic
surveillance, and the authority by which the said
transcripts and recordings were obtained.
(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:
(i) the names and addresses of
eyewitnesses;
(ii) all written or recorded statements,
and substantially verbatim oral
statements, of eyewitnesses the
Commonwealth intends to call at trial;
(Footnote Continued Next Page)
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defendant broader discovery than mandated by that decision. In Lutes,
supra, we observed that Pa.R.Crim.P. 573 applies to court cases and not to
summary cases. The Lutes Court also noted, consistently with Williams,
that Brady and its progeny did not create a general right to pretrial
discovery in a summary prosecution.
Nevertheless, we agree that the Commonwealth must reveal evidence
subject to Brady during its pursuit of a summary conviction. See Lutes,
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(Footnote Continued)
(iii) all written and recorded statements,
and substantially verbatim oral
statements, made by co-defendants, and
by co-conspirators or accomplices,
whether such individuals have been
charged or not; and
(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.
(b) If an expert whom the attorney for the
Commonwealth intends to call in any proceeding has
not prepared a report of examination or tests, the
court, upon motion, may order that the expert
prepare, and that the attorney for the
Commonwealth disclose, a report stating the subject
matter on which the expert is expected to testify;
the substance of the facts to which the expert is
expected to testify; and a summary of the expert's
opinions and the grounds for each opinion.
Pa. R. Crim. P. 573.
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supra at 960 (footnote omitted; emphasis added) (“Since summary cases
are not ‘court cases,’ pretrial discovery does not apply to Appellants unless
Brady or its progeny require otherwise.”); see Pa.R.Crim.P. 573,
Comment (“This rule is intended to apply only to court cases. However, the
constitutional guarantees mandated in Brady v. Maryland, 373 U.S. 83
(1963), . . . apply to all cases, including court cases and summary cases,
and nothing to the contrary is intended.”).
We thus consider whether Brady was violated when the trial court
denied Appellant’s discovery request.
In order for a defendant to establish the existence of a
Brady violation, he must establish that there has been a
suppression by the prosecution of either exculpatory or
impeachment evidence that was favorable to the accused, and
that the omission of such evidence prejudiced the defendant.
Further, 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. Collins, 888 A.2d 564, 577–78 (Pa. 2005).
In his discovery motion, Appellant asked that the Commonwealth be
compelled to produce records demonstrating that the current version of
Chapter 50 of the Masontown Code, which eliminated his ability to
administratively litigate the question of dangerousness, was ratified in
accordance with the applicable law. Appellant maintains that if the
amendment was not properly passed, the prior version of Chapter 50 would
be applicable herein.
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We first conclude that the evidence sought was not exculpatory, as
envisioned by Brady. The fact that Appellant previously could have
contested the finding that his building was dangerous to the borough council
does not, to any extent, disprove either that the structure in question was
dangerous or that the repairs in question were necessary. Commonwealth
v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (exculpatory evidence is
proof that “might raise a reasonable doubt about a defendant's guilt”; Brady
does not require disclosure of proof that merely might be useful to a
defendant). Concomitantly, whether the prior version of the Masontown
Code, due to the possibly invalid enactment of its current iteration, should
have applied herein is not exculpatory evidence.
In addition, neither the district attorney’s office nor any organization
under its supervision suppressed the information in question. The manner in
which the Masontown Code was amended was a matter of public record to
which Appellant had access. Brady does not require the Commonwealth to
conduct research on behalf of a defendant. Accordingly, that decision was
not implicated by Appellant’s discovery request, and the trial court did not
abuse its discretion in denying the requested discovery.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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