J-S73015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KERRY GATHAN SAWYERS, JR.                  :
                                               :
                       Appellant               :   No. 490 MDA 2019

         Appeal from the Judgment of Sentence Entered March 19, 2019
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0001965-2018


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 24, 2020

       Appellant, Kerry Gathan Sawyers, Jr., appeals from the judgment of

sentence entered in the Cumberland County Court of Common Pleas, following

his jury trial convictions of one count each of criminal trespass, disarming law

enforcement, and resisting arrest.1 After the jury’s verdict was recorded, the

trial court found Appellant guilty of summary criminal mischief.2 After careful

review, we affirm.

       The trial court set forth the relevant facts and procedural history as

follows:
            At approximately 9:40 p.m. on July 4, 2018, Lower Allen
       Township Police Officers were directed to 820 Lisburn Rd. Apt 513,
____________________________________________


1 18 Pa.C.S. § 3503(a)(1)(ii), 18 Pa.C.S. § 5104.1(a)(1), and 18 Pa.C.S.
§ 5104, respectively

2 18 Pa.C.S. § 3304(a)(5). The jury found Appellant not guilty on two counts
of aggravated assault, 18 Pa.C.S. § 2702(c), and one count of criminal
trespass, 18 Pa.C.S. § 3503(a)(1)(ii).
J-S73015-19


     to respond to an active burglary. The Cumberland County 9-1-1
     Emergency Communication Center dispatched a report that a male
     had kicked in the door of an apartment and was now standing
     inside. Officer [Bryan] Rennie, Corporal [Richard] Tamanosky, and
     Officer [Katie] Justh arrived on scene. The suspect was described
     as a black male with no shirt and red sweatpants. Officers Rennie
     and Justh responded to the victims in apartment 513, and Corporal
     Tamanosky remained in the first floor lobby in case the suspect
     came downstairs.

           Officers Rennie and Justh made contact with victims Connie
     Showers, the tenant of apartment 513 who had called the police,
     and her adult daughter Tisha Dominick. The victims confirmed
     they were unhurt and revealed [Appellant] is the boyfriend of
     victim-Dominick who lives in apartment 814 of the same complex.
     Victim-Dominick reported to the officers that [Appellant] had
     probably left the building. Officer Justh told Officer Rennie that
     she would check apartment 814 to see if [Appellant] had gone
     upstairs.

            Officer Justh used the elevator, and upon exiting, she
     observed a reflection of a person in the glass fire doors to her right.
     She cautiously walked down the hallway and soon observed a male
     matching the suspect’s description exit apartment 814.
     Officer Justh, dressed in badged police uniform, asked to speak
     with [Appellant], but he did not respond.            She immediately
     identified herself as a police officer, and [Appellant], whose back
     was to the officer, leaned against the wall railing and began moving
     backwards toward Officer Justh. As Officer Justh could not see
     [Appellant’s] hands, she began giving [Appellant] audible
     commands to get on the ground and onto his stomach. She
     repeatedly yelled these commands approximately 20 times.

            [Appellant], who was still moving toward Officer Justh, began
     rolling against the railing, looked at Officer Justh, but he still
     refused to comply with her commands. [Appellant’s] actions and
     noncompliance with instructions led her to believe [Appellant] was
     under the influence of drugs; a fact [Appellant] later admitted at
     trial. Officer Justh drew her firearm and pointed it at [Appellant]
     but again [Appellant] refused to comply and started to advance
     toward Officer Justh with his arms raised and fists clenched.
     Officer Justh backed away, transitioned from her firearm to her
     Taser, turned the Taser on, and yelled at [Appellant] to stop or he
     was going to get tasered.

                                     -2-
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          Despite multiple warnings [Appellant] continued to move
     toward Officer Justh in an aggressive manner, and she tasered
     [Appellant] who then momentarily fell to the ground screaming;
     however, [Appellant] quickly rolled over and stood up. He again
     advanced towards Officer Justh, and in an aggressive manner,
     swung his arms towards her head and face. Officer Justh tasered
     [Appellant] a second time and he fell backwards but still refused
     to comply. To escape officers[, Appellant] ripped the Taser wires
     imbedded in his chest, broke down the door—head first—to
     apartment 812, and forcibly entered the apartment.

           Once inside, [Appellant] tried to force the broken door shut.
     Officer Justh radioed dispatch that she had a male resisting arrest,
     he had been tasered, and had broken into apartment 812.
     Officer Rennie arrived and Officer Justh changed the cartridge on
     her Taser.

            Officers Rennie and Justh tried to force open the door that
     [Appellant] was pushing shut. Officer Justh observed an occupant
     inside the apartment; an elderly female, later identified as victim-
     Hannalyn Kiser. As the officers attempted to force the door back
     open, Officer Rennie attempted to taser [Appellant] from around
     an opening in the door.            [Appellant] grabbed hold of
     Officer Rennie’s Taser, and as [Appellant] and Officer Rennie
     struggled over control of the Taser, Officer Justh was struck in the
     left arm/shoulder with the current from the Taser.

            [Appellant] charged out of apartment 812 and towards
     Officer Justh. Officer Rennie yelled at Officer Justh to taser
     [Appellant] again. As [Appellant] aggressively advanced toward
     Officer Justh, she tasered [Appellant] again. During this tasering
     one probe entered [Appellant], and the other probe entered Officer
     Rennie’s thigh temporarily incapacitating both men; [Appellant]
     fell backwards onto Officer Rennie, and both men fell to the floor.
     [Appellant] rolled to his side, Officer Rennie pushed him off, and
     during the scuffle [Appellant] began to grab at the items on Officer
     Rennie’s utility belt—knocking the radio loose and opening the
     pouch to the officer’s ammunition magazines.            [Appellant]
     attempted to get ahold of Officer Rennie’s gun and generally
     continued to resist.

           [Appellant] tried again to re-enter apartment 812, but
     Officer Rennie again tasered [Appellant]. Corporal Tamanosky
     arrived and assisted in finally restraining and cuffing [Appellant].

                                    -3-
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      During the struggle Officers Rennie and Justh suffered injuries
      consisting of visible bruises, welts, scratches, red marks, and
      bleeding from the Taser puncture wound. Officers held [Appellant]
      to the ground while waiting for additional units to arrive and assist.

Trial Court Opinion, 7/12/19, at 8–13 (footnotes and record references

omitted).

      Appellant was sentenced on March 19, 2019, to a term of confinement

of twenty-four to sixty-eight months followed by twelve months of probation.

Trial Court Opinion, 7/12/19, at 5. This timely appeal followed, and Appellant

and the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for review:

      I. Did the trial court commit an abuse of discretion in limiting the
      Defense’s access to witness statements and training records by
      denying the defense motion to compel discovery and granting
      Lower Allen Township’s motions to quash subpoenas?

      II. Did the trial court abuse its discretion in allowing Officer Justh
      to testify about her training regarding the use of tasers after
      limiting the Defense’s access to discoverable materials necessary
      for a full and complete cross-examination?

      III. Did the trial court abuse its discretion in allowing Officer Justh
      to read verbatim passages from her preliminary hearing testimony
      that were outside the scope of cross examination and otherwise
      inadmissible under the Pennsylvania Rules of Evidence regarding
      out-of-court statements?

Appellant’s Brief at 7.

      Appellant first argues the trial court abused its discretion when it limited

his access to witness statements and training records by denying Appellant’s

motion to compel discovery and granting Lower Allen Township’s motions to

quash subpoenas. Appellant claims the disclosure of these documents was

                                       -4-
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required under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, the

due process guarantees in the Pennsylvania and United States Constitutions,

and Pa.R.Crim.P. 573. Appellant’s Brief at 28.

       On November 29, 2018, Appellant served seven subpoenas on the Lower

Allen Township Police Department requesting, inter alia, copies of the police

department’s policies on the use of force and interaction with intoxicated

individuals, and any records of the use of force on the night of the incident

involving Appellant. Appellant also sought access to the complete personnel

files of Officers Rennie, Tamanowsky, and Justh, including information

regarding the officers’ training in use of force, interaction with intoxicated

individuals, and use of tasers. After the department filed motions to quash

the subpoenas, Appellant filed a motion to compel discovery of “use of force,”

“workers compensation,” and “exposure” forms completed by the three

officers.3 Motion to Compel, 12/21/18, at unnumbered 1. Appellant averred

that the documents requested in the motion to compel were discoverable

under Pa.R.Crim.P. 573(B)(1)(f), Pa.R.Crim.P. 573(B)(2)(a)(i), and Brady,

373 U.S. at 87. Motion to Compel, at unnumbered 2.


____________________________________________


3  In response to a defense discovery request, Officer Rennie stated that he
had completed a “use of force” form relevant to Appellant’s arrest. Although
the officer indicated that the form was “attached,” it was not included. Motion
to Compel, 12/21/18, at unnumbered 1. The record does not provide any
information concerning whether Officers Justh and Tamanowsky also
completed a “use of force” form.



                                           -5-
J-S73015-19


       On January 15, 2019, the trial court held a hearing on the motion to

compel and also entertained argument on the motions to quash.4 On January

25, 2019, the trial court granted the motions to quash. Further, after

conducting an in camera review of the documents produced by the

Commonwealth in response to the motion to compel, the court denied that

motion.5 As to the documents provided by the Commonwealth, the trial court

noted:    “The Commonwealth’s exhibits 1, 2, and 3, as well as the court

requested electronically sought records that [have] been duplicated to a

thumb drive SHALL BE SEALED and preserved in the Clerk of Courts records

to be made available to appellate court(s) in the event of an appeal.” Order,

1/25/19, at unnumbered 1 (emphasis in original).

       The trial court explained its reasoning for these rulings, as follows:

       [Appellant’s] claims that denying his motion to compel and
       quashing the Defense’s subpoenas violated his due process rights
       and were an abuse of the court’s discretion, are wholly without
       merit. The record reveals . . . that although [Appellant’s]
       subpoenas were overbroad, unspecific, and lacked articulable
____________________________________________


4 The trial court was unaware that the motions to quash the subpoenas were
pending when the hearing commenced. During the course of the proceeding,
however, the Commonwealth provided a copy of the motions to the trial court,
and defense counsel explained the substance of the documents she was
requesting from the police department. N.T. (Omnibus Pretrial Motions
Proceeding), 1/15/19, at 6, 8.

5 We glean from our review of the hearing transcript that the trial court was
provided only with a “use of force” form authored by Officer Rennie. N.T.
(Omnibus Pretrial Motions Proceeding), 1/15/19, at 3 (wherein the
Commonwealth referred to use of force form in the singular, and the trial court
noted a prior discussion with the Commonwealth regarding “things the officer
said he had completed”) (emphasis added).

                                           -6-
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     reasons to believe that inspection would lead to the discovery of
     some relevant evidence, the court, out of an abundance of
     caution, performed an in camera review of the documents within
     the possession and control of the Commonwealth but found no
     exculpatory evidence, and the review further supports denying
     [Appellant’s] overbroad and general requests.

                                    * * *

           [Appellant’s] requests for voluminous records were
     repetitive, burdensome, unreasonable, and broadly made without
     regard to the relevance to [Appellant’s] case. The record further
     reveals that [Appellant] failed to establish that the discovery
     request was either material to the preparation of his defense or a
     reasonable request. See Pa.R.Crim.P. 573(B)(2)(a)(iv).

            The “statements” by the victim-officers were contained in
     their personnel files and workers’ compensation files. These pro
     forma records, not statements, were examined by the court and
     deemed not to be material toward exonerating [Appellant].
     Indeed, the reports are favorable to the Commonwealth’s
     allegations in that they report on the job injuries, as required by
     law, and corroborate the charges for bodily injuries to the officers.
     None of these reports in any way absolve [Appellant]. The claim
     that the lack of reports hampered the defense is belied by the fact
     that even without the requested files [Appellant] had the
     opportunity to fully cross examine Officer Justh about her training
     in the use of force, more specifically the use of a Taser, ostensibly
     this cross-examination led the jury to acquit [Appellant] of the
     charges involving an offensive assault on police officers.
     Accordingly, [Appellant] did not suffer any impingement upon his
     due process rights.

            Instantly, as it was in [Commonwealth v. Garcia, 72 A.3d
     681 (Pa. Super. 2013),] it naturally follows that because
     [Appellant] has failed to establish materiality or reasonableness,
     the disclosure sought by [Appellant] would not be in the interest
     of justice. [Appellant] has no right to unfettered access to files not
     in his possession, nor may he search untrammeled through
     Commonwealth files in order to argue the relevance of material
     therein. As there was no reasonable and specific basis to permit
     [Appellant] to review the officers’ personnel and other files,
     including personal information, [Appellant’s] claims of error are
     meritless and warrant no relief.

                                     -7-
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Trial Court Opinion, 7/12/19, at 18, 21–22 (footnotes omitted).

       “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

omitted). “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. (quoting Commonwealth

v. Antidormi, 84 A.3d 736, 749–750 (Pa. Super. 2014)).            “Even when a

defendant can prove an error in the admission or exclusion of testimony, it is

not enough to warrant a new trial unless he can also prove that he was

prejudiced by such error.” Commonwealth v. Beltz, 829 A.2d 680, 682–

683 (Pa. Super. 2003).

       At the outset, our review of the discovery issue is hampered by an

incomplete record certified on appeal.           The thumb drive supposedly

memorializing Commonwealth Exhibit 1 (use of force report), Exhibit 2

(worker’s compensation forms submitted by the three officers), and Exhibit 3

(exposure forms for the three officers), did not include Exhibit 1, the use of

force report.6     Additionally, although it appears that the Commonwealth

____________________________________________


6 Furthermore, the thumb drive was not part of the trial court record certified
on appeal and was produced only after inquiry and request by the
Prothonotary of this Court.



                                           -8-
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provided the Lower Allen Township Police Department use of force policy to

the trial court, there is no indication if that document was preserved.7 Finally,

we cannot discern from our review of the transcript of the omnibus motion

hearing the nature of the “electronic copy of additionally stored records”

referenced in the trial court’s order denying the motion. Order, 1/25/19, at

unnumbered 1.

       “[T]his Court may consider only the facts that have been duly certified

in the record when deciding an appeal.” Commonwealth v. Kennedy, 151

A.3d 1117, 1127 (Pa. Super. 2016) (citation omitted). It is the appellant’s

responsibility to ensure that the Court has the complete record necessary to

review his claim. Id. (citation omitted). When an appellant fails to provide

the court with the necessary items for review, the claim is waived.          Id.

(citation omitted). We will not find waiver in this case, however, because it is

not apparent whether the above-described documents were ever included in

the trial court record; nor can we determine whether Appellant had access to

these documents when perfecting his appeal. In any event, we can resolve

the discovery issues based upon the record before us.

       We first address whether the trial court erred when it denied Appellant’s

motion to compel discovery of use of force, worker’s compensation, and



____________________________________________


7  See N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 3.
([Commonwealth]: “What we have, Judge, we have the use of force report
for you to review, as well as the policy on use of force.”).

                                           -9-
J-S73015-19


exposure forms completed by Officers Rennie, Tamanowsky, and Justh. The

trial court determined that these records were not discoverable under

Pa.R.Crim.P. 573(B)(2)(a)(iv) because Appellant did not establish that the

discovery request was either material to the preparation of his defense or was

reasonable. Trial Court Opinion, 7/12/19, at 21. The trial court also offered

that his in camera review of the documents revealed no information helpful to

exonerating Appellant. Id.

      On appeal, Appellant disputes the trial court’s conclusion that the

discovery sought in his motion to compel was immaterial to his guilt.

Appellant contends that “the pertinent question when determining whether

the Commonwealth acted improperly when it fails to disclose evidence is

whether it could reasonably have predicted possible defense strategies. If it

could, then the prosecutor will be held to reasonable anticipation of what

evidence in his possession might be material.” Appellant’s Brief at 32 (quoting

Commonwealth v. Hanford, 937 A.2d 1094, 1100 (Pa. Super. 2007)

(internal citation and quotations omitted)).      Appellant asserts that the

allegations against him were premised on a theory             that he acted

unreasonably, recklessly, and aggressively towards the officers, compelling

them to use substantial force in order to subdue him. Thus, Appellant urges

that inquiry into the reliability of the police witnesses was paramount to his

defense, and the prosecution should have anticipated this strategy.

Appellant’s Brief at 32–33.


                                    - 10 -
J-S73015-19


      While we agree with the trial court that the police officers’ statements

recorded on the worker’s compensation and exposure forms were not material

to the case against Appellant, we cannot definitively state the same for the

information that may have been disclosed on the use of force form. However,

because this form was not included in the thumb drive forwarded to this Court,

we will not speculate as to its contents.    Nonetheless, even assuming this

document was discoverable under Pa.R.Crim.P. 573 and/or Brady, Appellant

is not entitled to a new trial because he cannot demonstrate the requisite

prejudice resulting from a violation of either the procedural rule or the

Supreme Court decision.

      Pa.R.Crim.P. 573 reads 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.

                                   * * *

           (f) any tangible objects, including documents, photographs,
        fingerprints, or other tangible evidence;

                                    * * *

      (2) Discretionary With the Court.

         (a) In all court cases, except as otherwise provided in Rules
      230 (Disclosure of Testimony Before Investigating Grand Jury)

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J-S73015-19


      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:

                                        * * *

           (ii) all written or recorded statements, and substantially
        verbatim oral statements, of eyewitnesses the Commonwealth
        intends to call at trial.

Pa.R.Crim.P. 573(B)(1)(f), (B)(2)(a)(ii).

      “A   violation   of   discovery    [under   Pa.R.Crim.P.   573]   does   not

automatically entitle appellant to a new trial. Rather, an appellant 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. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (internal

citations and quotations omitted). Furthermore,

            To demonstrate a Brady violation, Appellant must show
      that: (1) the prosecution concealed evidence; (2) which was either
      exculpatory evidence or impeachment evidence favorable to him;
      and (3) he was prejudiced by the concealment. Strickler v.
      Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286
      (1999). To show prejudice, he must demonstrate a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different.          A
      reasonable probability for these purposes is one which
      “undermines confidence in the outcome of the trial.” Kyles v.
      Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490
      (1995).

Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (some internal

quotations omitted).


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     At the omnibus pretrial hearing, defense counsel explained why she was

requesting the information addressed in her motion to compel:

     [Defense Counsel]: The reason I am requesting those records is
     because they are eyewitness statements about the incident at hand
     in which [Appellant] is accused of aggravated assault. There
     [are] allegations that there was a tussle over a taser and
     [Appellant] was tased multiple times. So I am seeking to have a
     complete record of all eyewitness statements so that I can prepare
     for a constitutionally robust cross examination on behalf of
     [Appellant].

N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 8–9 (emphasis

added).   Obviously, the fact that Appellant was acquitted of aggravated

assault abrogates any finding of prejudice under Brady, 363 U.S. at 87

(“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. . . .”). Furthermore, even if Officer Rennie’s use of force form

included statements implicating the trial evidence supporting Appellant’s

convictions   of   disarming   a   police   officer     and    resisting   arrest,   both

Officers Justh’s    and    Tamarowsky’s         trial     testimony        corroborated

Officer Rennie’s version of events concerning the interaction with Appellant.

      As to the question of prejudice arising from a Pa.R.Crim.P. 573 violation,

Appellant presented a cognizable argument that prior statements by witnesses

can be discoverable under that rule. He does not, however, aver in his brief

that he was prejudiced by the failure to disclose those statements.

Additionally, Appellant has not advanced any argument that his trial strategy

changed traceable to the withheld information.                Appellant’s defense was

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focused on the reliability of the police officers. While Appellant posits that the

withheld documents might have bolstered the effectiveness of his cross-

examination, he does not claim that he abandoned a tactical decision to

impeach the officers’ credibility because he did not have access to their prior

statements. Therefore, having failed to demonstrate prejudice under either

Brady or Pa.R.Crim.P.573, Appellant is not entitled to a new trial on this basis.

         We next address whether the trial court erred when it quashed the

subpoenas.       The subpoenas originally demanded numerous documents.

However, at the pretrial hearing, defense counsel limited the scope of her

request to the prior witness statements that were the subject of the motion

to compel and the training and certification records included in the three

officers’ personnel files. N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19,

at 10.

         The trial court granted the motions to quash, reasoning as follows:

                In order to obtain the personnel records of an officer, a
         defendant must first articulate a reasonable basis for his request;
         a criminal defendant is not entitled to a “wholesale inspection” of
         that file.   See, Commonwealth v Mejia-Arias, 734 A.2d
         870,876 (Pa. Super. 1999). “As for in camera review, the
         Pennsylvania Supreme Court has held that a defendant is entitled
         to court inspection of investigatory files only where there is an
         articulable reason to believe that inspection would lead to the
         discovery of some relevant evidence.”        Commonwealth v.
         Blakeney, 946 A.2d 645, 66 (Pa. 2008). Counsel’s stated
         intention to mount a vigorous cross examination of the witnesses
         does not meet the prerequisite for the inspection of the personnel
         files.

             “A defendant is entitled to a court inspection of the
         Commonwealth’s investigatory files only when there exists at least

                                       - 14 -
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      some reason to believe the inspection would lead to the discovery
      of evidence helpful to the defense.” Commonwealth v. Gartner,
      381 A.2d 114, 120 (1977). By separate Omnibus Motion the officer
      completed administrative papers were reviewed by the [c]ourt
      even though no valid reason given herein for said inspection and
      found not to have discoverable material.         Furthermore, the
      information contained in any law enforcement policy is protected
      for officer and public safety absent there being a coherent reason
      for said inspection, again there is none herein.

Order, 1/25/19, at 1–2.

      We have previously addressed whether the officers’ statements were

discoverable and concluded that no prejudice ensued from the failure to

disclose these documents.        Moreover, we agree with the trial court that

Appellant failed to proffer a reason to believe that the information included in

the officers’ personnel files concerning their training and certification would

lead to the discovery of material evidence.     A defendant must be able to

articulate a reasonable basis for any inspection demanded of police personnel

files. Commonwealth v. Mejia-Arias, 734 A.2d 870, 876 (Pa. Super. 1999).

      At the hearing, defense counsel explained the relevance of the training

and certification information:

            I don’t need the complete personnel records, but I need to
      be able to prepare for an examination of those witnesses. If they
      get on the witness stand and say, I have extensive training in the
      use of force and I follow[ed] that training to a T, I am not able to
      cross-examine them without knowing what that training actually
      was.

N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 10. A representation

that the information sought might be helpful in cross-examining the officers

about their activity at the crime scene does not satisfy the materiality

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requirement    justifying   release    of   police   personnel    files.    See

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (More

than a mere assertion that the information disclosed might be helpful is

necessary).   Even imagining a scenario where the requested training and

certification documents were made available, and the officers’ trial testimony

revealed that their actions were not in conformity with their training, such a

revelation would only be reflective of the officers’ credibility concerning their

own actions and would not be probative of Appellant’s guilt or innocence.

      For the above reasons, we conclude that Appellant has failed to

demonstrate prejudice flowing from either of the trial court’s discovery

orders. Therefore, Appellant’s assertion of error involving the decisions to

deny the motion to compel and grant the motion to quash is meritless.

      Appellant’s second claim is that the trial court abused its discretion

when it permitted Officer Justh to testify regarding her training in the use of

tasers. As previously described, “[a]dmission of evidence is a matter within

the sound discretion of the trial court, and will not be reversed absent a

showing that the trial court clearly abused its discretion.” Santos, 176 A.3d

at 882.   Further, to warrant a new trial on this basis of an erroneous

evidentiary ruling an appellant must prove that he was prejudiced by such

error. Beltz, 829 at 682–683.

      At the motion to compel discovery and the motions to quash the

subpoenas hearing, Appellant’s counsel explained that she was seeking


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disclosure of documents related to the responding officers’ training in order to

determine if they followed department policy governing the use of tasers. See

N.T. (Omnibus Pretrial Motions Proceeding), 1/15/19, at 10.

      On appeal, Appellant contends that in light of the trial court’s pretrial

ruling precluding access to information on the subject of Officer Justh’s

training and certification, the officer’s trial testimony regarding the use of

tasers was inadmissible. The pertinent testimony was elicited during re-direct

examination:

             Q. There was also a number of questions regarding the
      taser’s cartridges, that kind of thing. Do you have any particular
      training as it relates to tasers?

              A. Just the training my department gives us when we
      initially got the tasers, and every year we have to do
      recertification, but I am not an instructor.

            Q. You are not an instructor?

            A. No.

            Q. Do you have to get certified to use the taser?

            A. Yes, we had to go through training. And the initial—

            [DEFENSE COUNSEL]: Judge, I am going to object to
            questioning about Ms. Justh’s training in light of the pretrial
            motions that were filed.

            THE COURT: Overruled.

            THE WITNESS: I am sorry? The question?

            [COMMONWEALTH]: I believe where we left off was do you
            have to be - do you receive training even if you are not an
            instruct


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           A. Yes. Yes. Our initial training is –

                                    * * *

           Q. And you have to be certified?

           A. Yes.

           Q. And, I am sorry, did you say that certification was yearly?

           A. Yes.

           Q. On July 4th, 2018, was your certification up to date?

           A. Yes.

           Q. How many times prior to that year had you been
           certified?

           A. Every year. And I want to say we had been carrying the
           tasers for -- I honestly don’t -- between 6 to 8 years maybe.

           Q. And was there any time where there was a break between
           when you were certified?

           A. You mean where I was not certified?

           Q. Yes?

           A. No.

           Q. And so you said you have had the tasers for about 6 to 8
           years?

           A. I might be off on those numbers.

           THE COURT: Yeah. She is trained. You have got that.

N.T. 1/29/19, at 157–159.

     It is significant that Officer Justh’s testimony that she was trained in the

use of tasers and that annual recertification was required was admitted prior


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J-S73015-19


to defense counsel’s objection. The testimony after the objection concerned

only the number of times Officer Justh was recertified and that her certification

was current on the date of the crimes.               The admissibility of this mostly

duplicative evidence clearly was not “manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill-will, as shown by the evidence on record.” See

Santos, 176 A.3d at 882.

      Furthermore, at the pretrial motion hearing, Appellant’s counsel

represented that she was seeking disclosure of the training information in

anticipation    of   Officer   Justh’s   potential    testimony   that   she   followed

department training when she employed her taser on Appellant.                     N.T.

(Omnibus Pretrial Motions Proceeding), 1/15/19, at 10. At trial, Officer Justh

did not testify to the specifics of her training or whether she acted in

conformity with that training on the night of the criminal activity. Additionally,

because the Commonwealth opened the door on this topic, Appellant had the

opportunity to cross-examine Officer Justh on her training and certification.

Thus, there was no abuse of discretion in the admission of this benign

testimony that Officer Justh was trained in taser use and was recertified on an

annual basis.

      Appellant’s final issue is that the trial court abused its discretion when it

permitted Officer Justh to read an excerpt from her preliminary hearing

testimony because it was outside the scope of the cross-examination and




                                         - 19 -
J-S73015-19


violated   the   Pennsylvania   Rules   of    Evidence   governing   out-of-court

statements. Appellant’s Brief at 43.

      On direct examination, Officer Justh described Appellant’s behavior after

she tased him the first time: “[H]e was making noises while he was on the

ground, and that quickly he got back up and started swinging at my face[,]

and I tased him a second time. . . . He had fists and he was punching.” N.T.

1/29/19, at 113.    During cross-examination, defense counsel attempted to

impeach this testimony with the officer’s preliminary hearing testimony:

      [DEFENSE COUNSEL]: And on direct you testified that when he
      got back up he started swinging his fists at you?

      [OFFICER]: Yes.

      [DEFENSE COUNSEL]: I would like you to continue reading along
      with me, page 10 of that preliminary hearing transcript, line 20.
      This is right after the sentence -- I will start from the beginning.
      Answer, it did strike him. He did fall to the ground right at my feet
      and then his head struck and then he started screaming. He
      became aggressive, jumped up again, [and] tried to come towards
      me. I popped the taser again. He was able to run around the
      corner. Did I read that correctly?

      [OFFICER]: Yes.

      [DEFENSE COUNSEL]: At the preliminary hearing you did not
      testify that he raised his fists to you?

      [OFFICER]: No, but I stated he became aggressive and came
      towards me.

Id. at 138–139.

      On redirect, the Commonwealth posed some follow-up questions to

Officer Justh regarding her preliminary hearing testimony recorded on page




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J-S73015-19


ten of the transcript. When the Commonwealth then asked Officer Justh to

read from page thirteen of the transcript, the following transpired:

      [COMMONWEALTH]:        If I could direct you to page 13 of the
      transcript.

      THE COURT: Give me a second. I didn’t look at that page yet.
      Where are you looking on page 13?

      [COMMONWEALTH]: The lines 4 through 7.

      THE COURT: All right.     That is beyond the scope of her cross
       examination.

      [DEFENSE COUNSEL]: Thank you, Judge.

      [COMMONWEALTH]: I understand that, Judge. This is the first
       time that we have been provided with this transcript.

      THE COURT: Is that true?

      [DEFENSE COUNSEL]: It has never been requested.

      THE COURT: Okay. I change my decision. I’ll let you look at page
      13.

      [DEFENSE COUNSEL]: Judge -

      THE COURT: She hasn’t seen it, is what I just heard. This officer
      has never seen the transcript.

      [DEFENSE COUNSEL]: I did not ask any questions about the
      content of what is on page 13 or impeach her with any - - attempt
      to impeach her with any statements from page 13. The District
      Attorney is seeking to elicit emotional testimony that is outside
      the scope of cross examination and should not be admitted at this
      point.

      THE COURT: Well, it has already been testified to. It is not
      redirect based on what your cross examination was, but they
      hadn’t seen it until you brought it in so I am giving them the
      latitude.



                                    - 21 -
J-S73015-19


     [COMMONWEALTH]: If you could read, starting at line 4, the
     question that was read and what your response was?

                                    * * *

     [OFFICER]: So during this entire event, how were you in fear for
     your life at any point?

     [COMMONWEALTH]: What was your response?

     [OFFICER]: My response was I was in fear for my life when he
     approached me initially. His look, coming at me, I was fearful,
     then I did my job. I mean I just - - I reacted and did my job and
     did what I had to do but it was - - you know, I was fearful the
     entire time.

N.T., 1/29/19, at 161–162.

     The trial court addressed Appellant’s argument that portions of the

redirect examination were beyond the scope of the cross-examination and,

therefore, inadmissible. The court stated:

       [T]he Commonwealth’s line of questioning on redirect arose
       from the same transcript page that defense counsel had read
       into the record and was plainly within the same scope raised on
       cross examination regarding when the officer’s gun was first
       pulled. Further, there is nothing emotional about the testimony
       presented on redirect, and the redirect testimony was
       admissible as a consistent statement used to rehabilitate the
       credibility of the witness. As the testimony was admissible
       under the rules of evidence, there was no abuse of discretion.

Trial Court Opinion, 7/12/19, at 26–27.

     We take issue with the trial court’s factual findings and reasoning. First,

the redirect testimony under scrutiny was from a transcript page different

from the page that defense counsel referenced in her cross-examination of

Officer Justh. See N.T., 1/29/19, at 136 (wherein defense counsel read from

page ten of the transcript); id. at 161 (wherein the Commonwealth directed

                                    - 22 -
J-S73015-19


the witness to read from page thirteen). Additionally, defense counsel was

not attempting to discredit Officer Justh’s recollection concerning when she

drew her weapon; rather, counsel sought to highlight a discrepancy in

Officer Justh’s trial testimony that Appellant was waving his fists at her, a fact

that she did not mention at the preliminary hearing. See N.T., 1/29/19 at

139.

       We further disagree with the trial court that the redirect testimony was

admissible as a consistent statement used to rehabilitate the credibility of

Officer Justh. Pennsylvania Rule of Evidence 613(c) instructs:

       (c) Witness’s Prior Consistent Statement to Rehabilitate.
       Evidence of a witness’s prior consistent statement is admissible to
       rehabilitate the witness’s credibility if the opposing party is given an
       opportunity to cross-examine the witness about the statement and the
       statement is offered to rebut an express or implied charge of:

                                     * * *

       (2) having made a prior inconsistent statement, which the witness has
       denied or explained, and the consistent statement supports the
       witness’s denial or explanation.

Pa.R.E. 613(c)(2).     This provision would have authorized admission of

Officer Justh’s testimony from page thirteen of the preliminary hearing

transcript if that excerpt concerned whether Appellant was waving his fists

when he confronted the officer.      That was not the case.      The challenged

testimony, instead, focused on Officer’s Justh’s fear of Appellant. See N.T.,

1/29/19, at 162. Thus, this testimony, which was beyond the scope of the

cross-examination and was not related to the purported inconsistency, should




                                      - 23 -
J-S73015-19


have been disallowed.8 However, as explained, an error in the admission of

testimony, is not enough to warrant a new trial unless an appellant can also

prove that he was prejudiced by such error. Beltz, 829 A.2d at 682–683.

       Appellant herein has not demonstrated the requisite prejudice.

Although Appellant avers that Officer Justh’s recital of her preliminary hearing

testimony that she feared Appellant was “emotionally triggering,” in fact, it

was merely repetitive of the officer’s earlier trial testimony. Appellant’s Brief

at 47. When asked on direct examination if she “fear[ed] for her safety” as

Appellant approached her, the officer responded: “I felt as though if he got

my firearm, he was going to kill me.” See N.T., 1/29/19, at 111. Officer Justh

further recounted that “[i]n fear for my life, I transitioned from my firearm to

my taser because I was afraid if he got ahold of my gun he could have

potentially taken my life. Id. at 112. Finally, when asked, given her “fear for

her life,” why she did not fire at Appellant, Officer Justh explained: “I was

more fearful that if he got a hold of my gun on that day that I would have

been the one to not go home.” Id. at 127. Therefore, because the jury heard

repeated and consistent testimony that Officer Justh feared that Appellant was



____________________________________________


8  We also note that although the trial court originally ruled that testimony
from page thirteen of the preliminary hearing transcript was beyond the scope
of Appellant’s cross-examination, he reversed himself on the basis that the
witness had not seen the transcript. N.T, 1/29/29, at 161. This is not a legally
valid reason to have allowed the testimony. See Pa.R.E. 613(a) (a prior
inconsistent statement made by the witness to impeach “need not be shown
or its contents disclosed to the witness at that time. . . .”).

                                          - 24 -
J-S73015-19


going to harm, and possibly kill her, her reaffirmation of this fear on re-direct

examination was not so prejudicial as to mandate a new trial.

      For these reasons, we affirm the judgment of sentence. Judgment of

sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/24/2020




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