J-A26018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                 v.                            :
                                               :
                                               :
    D.K.                                       :   No. 1661 WDA 2015

                       Appeal from the Order October 14, 2015
                  In the Court of Common Pleas of Cambria County
                Criminal Division at No(s): CP-11-CR-0000233-2015

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                            FILED DECEMBER 13, 2016

           The Commonwealth of Pennsylvania appeals from the October 14,

2015 order that granted Appellee’s motion in Limine to preclude the

Commonwealth from introducing certain expert testimony at trial. 1            We

affirm.

           The relevant facts underlying this appeal are as follows. On December

29, 2014, the Commonwealth charged Appellant with fifty-nine (59) crimes

arising out of illegal sex acts that Appellant allegedly perpetrated upon his

minor son (“Complainant”) over a period of ten years. See Trial Ct. 1925(a)



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1
 We assert jurisdiction over this case based upon the Commonwealth’s
certification that the order terminates or substantially handicaps its
prosecution of this case. See Commonwealth v. Ivy, 146 A.3d 241, 244
n.2 (Pa. Super. 2016); Pa.R.A.P. 311(d).
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Op., 11/19/2015, at 1-2.2             The Commonwealth intends to seek the

maximum sentence for these crimes. Id. at 2.

        On June 5, 2015, the Commonwealth produced a pre-trial discovery

packet to Appellee, which contained a three-page report of Complainant’s

medical examination by Dr. Kupchella on December 10, 2014. See id. at 3.

This report included a summary of the allegations of sexual abuse and noted

that Complainant’s “[a]nal exam reveals a 2 x 1 cm area of thickened scar

tissue at 12 o’clock position while examined in the supine position.”              See

Appellee’s Supplemental Pre-Trial Mot. in Limine, 10/7/2015, (quoting

Exhibit A, 12/10/2014 (“Pre-Trial Expert Report”)).

        A July 2015 scheduling order set trial to begin Monday, October 19,

2015. See id. at 6. At a pre-trial hearing on September 3, 2015, the trial

court    deferred    ruling   on    pre-trial    motions   in   Limine   pending   the

Commonwealth’s filing of a Bill of Particulars and Pa.R.Evid. 404(b)(3)

notice. Id. at 2. Jury selection took place on October 1, 2015. See Trial

Ct. Order, 10/2/2015.

        Following appointment of new counsel, Appellee filed a supplemental

motion in limine requesting “that Dr. Kupchella be precluded from testifying

____________________________________________


2
   Appellant is charged with 18 counts of involuntary deviate sexual
intercourse with a child, 8 counts of involuntary deviate sexual intercourse,
16 counts of indecent assault, and 7 counts of endangering welfare of
children. See 18 Pa.C.S. §§ 3123(b), 3123(a)(7), 3126(a)(7), 3126(a)(8),
4304(a).



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to any conclusions or opinions that are not contained in her report.”

Appellee’s Supp. Mot. in Limine, 10/7/2015, at 3 (citing Pa.R.Crim.P.

573(B)(e)). A hearing on Appellee’s motion was scheduled for October 13,

2015.

        On October 12, 2015, the Commonwealth provided Appellee with an

addendum to the Pre-Trial Expert Report stating Dr. Kupchella’s conclusion

that Complainant’s physical trauma is consistent with his allegations of

sexual abuse. See Notes of Testimony (“N.T.”), 10/13/2015, at 2-3.

        At the hearing, Appellee objected to the new addendum on the basis

that it was untimely and argued that it should be excluded in connection

with the motion he filed. See N.T., 10/13/2015, at 3.

        On October 14, 2015, the court issued an order granting Appellee’s

motion in limine that effectively precludes the Commonwealth from

presenting the addendum that the Commonwealth “provided only a few days

before the commencement of trial.” Trial Ct. 1925(a) Op., 11/19/2015, at 4

(citing N.T., 10/13/2015, at 3).       Moreover, the order prohibits the

Commonwealth “during its case in chief at trial from having Dr. Kupchella

testify beyond the scope of the opinions and conclusions contained in her

medical report of December 10, 2014” or “any different opinions expressed

in any supplemental medical reports or during the course of Children and

Youth Proceedings.” Trial Ct. Order, 10/14/2015, at 1-2.




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      The Commonwealth filed a notice of appeal on October 16, 2015,

certifying   that   the   evidentiary   order    “substantially   handicaps     the

prosecution.” Commonwealth’s Brief at 1. The Commonwealth timely filed a

court-ordered 1925(b) statement, and the court issued a responsive opinion.

      On appeal, the Commonwealth presents two issues:

      1.   Whether the trial court erred by excluding evidence based
      upon an ostensible discovery violation when the appropriate
      remedy for an alleged late discovery claim was a continuance.

      2.   Whether the trial court erred by excluding evidence
      because of surprise when such evidence was viewed by the
      Defendant months prior via CYS records.

Commonwealth’s Br. at 5.

      The Commonwealth challenges an evidentiary decision of the trial

court. Our standard of review is well settled.

      When ruling on a trial court's decision to grant or deny a motion
      in Limine, we apply an evidentiary abuse of discretion standard
      of review. A trial court has broad discretion to determine
      whether evidence is admissible, and a trial court's ruling
      regarding the admission of evidence will not be disturbed on
      appeal unless that ruling reflects manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support to be
      clearly erroneous. If the evidentiary question is purely one of
      law, our review is plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014),

reargument denied (Nov. 24, 2014) (internal quotation marks and citations

omitted).

      First, the Commonwealth contends that precluding expert testimony

based on an “ostensibly late disclosure” was drastic and an abuse of


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discretion. Commonwealth’s Br. at 12. The Commonwealth maintains that

it complied with its “ongoing discovery obligations” under Pennsylvania Rule

of Criminal Procedure 573, which contains no time limit for disclosing reports

to the defense. See Commonwealth’s Br. at 13; N.T., 10/13/2015, at 3-4.

According to the Commonwealth, the trial court’s ruling “effectively turns Dr.

Kupchella from an expert witness to an eye witness.” Id. at 21.

      Second, the Commonwealth contends that the “trial court erred by

excluding evidence because of surprise when such evidence was viewed by

[Appellee] months prior via [Children and Youth Services (CYS)] records.”

See Commonwealth Br. at 24. The Commonwealth maintains that Appellee

“knew of the expert witness’s conclusions months ahead of trial” based on

Dr. Kupchella’s testimony in civil proceedings and from reviewing the CYS

file. Id.; see N.T., 10/13/2015, at 4.

      Lodged within this argument, the Commonwealth raises a third issue

that was not preserved in its Pa.R.A.P. 1925(b) statement: whether the trial

court erred when it denied its request to reopen the CYS records.         The

Commonwealth claims that it needed access to the records to determine

whether Appellee actually was surprised by any contents of the new report.

Id. at 26.    It suggests that there was a breakdown in communication

between the court and the parties during the hearing as to what access

either party had to CYS records. Id. (citing Pa.R.A.P. 1926). Because the

Commonwealth did not raise its petition to open the CYS records as an issue


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in its Pa.R.A.P. 1925(b) statement, we deem it waived. See Pa.R.A.P. 302.

     The      Commonwealth   suggests   that   Appellee’s   Motion   in   Limine

triggered its Rule 573 disclosure obligations.        Under Rule 573, the

Commonwealth has a duty to disclose “requested items or information”

within its possession, including “any results or reports of scientific tests,

expert opinions, … or other physical or mental examinations of the

defendant”.    Pa.R.Crim.P. 573(B)(1)(e); see Commonwealth v. Rogers,

456 A.2d 1352, 1355 (Pa. 1983) (noting that disclosure is required “upon

pre-trial demand”).

     The Commonwealth contends that the proper remedy for a late

disclosure under Pa.R.Crim.P. 573 is a continuance.     See Commonwealth’s

Br. at 14 (citing in support Belani, 101 A.3d at 1163; Commonwealth v.

Montgomery, 626 A.2d 109, 114 (Pa. 1993) (when Commonwealth

discovered DNA during trial, the appropriate remedy was to declare a

mistrial, grant a continuance, and give defendant an opportunity to present

his case before a different jury), abrogated by Commonwealth v. Burke,

781 A.2d 1136, 1146 (Pa. 2000) (appropriate remedy for Commonwealth’s

bad faith failure to disclose exculpatory evidence was a continuance rather

than a dismissal of all charges because prosecutorial misconduct was not

deliberate)). The Commonwealth’s argument is not persuasive.

     The Commonwealth’s reliance on Belani is misplaced. In Belani, the

trial court erred in excluding a new DNA expert report “based on mere


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failure to have testing performed earlier.” See Belani, 101 A.3d at 1161.

However, in that case, the Commonwealth could not procure a DNA sample

from the defendant sooner or, further, expedite the test results from the lab.

See id.      This Court held that Rule 573 “does not require that the

Commonwealth perform scientific testing in a specified time frame.” See id.

at 1163. Thus, the proper remedy under the circumstances was to grant a

continuance, not exclusion. See id.

       Unlike in Belani, the trial court did not exclude Dr. Kupchella’s

testimony entirely.       “[N]othing in [the trial court’s] ruling prevents Dr.

Kupchella from testifying on rebuttal as to opinions and conclusions beyond

those set forth in her December 10, 2014 report, should [Appellee] open the

door to invite said testimony.” Trial Ct. Rule 1925(a) Op., 11/19/2015, at 5.

Unlike in Montgomery, the Commonwealth concedes that the addendum

did not contain “newly discovered evidence” because it argues that there

should have been no surprise to Appellee.        Thus, it could have made the

addendum available to the defense months earlier, rather than on the eve of

trial.3 Accordingly, the Commonwealth’s argument is without merit.

____________________________________________


3
 Nevertheless, the Commonwealth argues that Appellee had notice of its
contents because he “knew of the expert witness’s conclusions months
ahead of trial.” Commonwealth’s Br. at 24. In support, the Commonwealth
cites Commonwealth v. Robinson, 122 A.2d 367 (Pa. Super. 2015)
(concluding that Commonwealth was not required to provide a transcript of
video testimony that was already submitted to defense on DVD), reargument
denied (Oct. 9, 2015), appeal denied sub nom. Commonwealth v. Green,
(Footnote Continued Next Page)


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      Appellee contends that the late disclosure of the addendum to a report

that was more than a year old is a textbook case of “trial by ambush.”

Appellee’s Br. at 5 (emphasis added) (citing Commonwealth v. Shelton,

640 A.2d 892 (Pa. 1994)). Moreover, Appellee stated on the record that he

“was basing [his] preparation on the original report” and did not expect the

Commonwealth would add anything so close to trial. N.T., 10/13/2015, at

11.

      “As we have noted in the past, the purpose of our discovery rules is to

permit parties in criminal matters to be prepared for trial; trial by ambush is

contrary to the spirit and letter of those rules and will not be condoned.”

Commonwealth v.             Appel,     689       A.2d   891,   907   (Pa.   1997)   (citing

Commonwealth v. Shelton, 640 A.2d 892 (Pa. 1994)). “The purpose of

Rule [573] is to prevent trial by ambush which, of course, leads to a denial

of due process.” Commonwealth v. Ulen, 650 A.2d 416, 419 (Pa. 1994)

(holding that proper remedy under Rule 573 for failure to disclose existence

of tape-recordings prior to trial is award of new trial). “When a party has

failed to comply with Rule [573], the trial court has broad discretion in

choosing an appropriate remedy.” Commonwealth v. Manchas, 633 A.2d

618 (Pa. Super. 1993); see also Burke, 781 A.2d at 1143.
                       _______________________
(Footnote Continued)

130 A.3d 1287 (Pa. 2015), and appeal denied, 130 A.3d 1289 (Pa. 2015)).
This argument is without merit, as Appellee points out, it is axiomatic to
require a defendant to determine what evidence will be used against him at
trial rather than permit him to rely on discovery. See Appellee’s Br. at 20.



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     The Commonwealth’s suggestion that the addendum did not surprise

Appellee is disingenuous. Appellee received the Commonwealth’s proposed

witness list on October 1, 2015.      Appellee filed a motion to limit the

proposed expert witness’ testimony on October 7, 2015. It is clear from the

sequence of events that the prosecutor solicited a new report and gave it to

Appellee’s counsel the day before the hearing on the motion in limine:

     I got ahold of the doctor. She graciously within a very quick
     turnaround time was able to get the report to me yesterday. As
     soon as it was in my hands, I gave it to defense counsel. I hand
     walked over other discovery to make sure he had everything.

N.T., 10/13/2015, at 9-10. Moreover, the Commonwealth did not produce

the addendum to the defense until after Appellant filed his motion in Limine

to preclude Dr. Kupchella from testifying beyond the scope of her Pre-Trial

Expert Report. See Trial Ct. 1925(a) Op., 11/19/2015, at 6. Further, the

report was provided shortly before trial was scheduled to begin on October

19, 2015.

     Because this sequence of events suggests that a discovery violation

occurred, the trial court was empowered to select an appropriate remedy.

Under Pa.R.Crim.P. 573(E), the trial court “may prohibit such party from

introducing evidence not disclosed… or it may enter such other order as it

deems just under the circumstances.” “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) (reversing trial court’s ruling resulted in


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ultimate dismissal of the case); see also Commonwealth v. Yost, 502

A.2d 216, 219 (Pa. Super. 1985). However, a continuance does not cure all

potential prejudice, where the unfair prejudice “will go beyond surprise.”

Commonwealth v. Johnson, 456 A.2d 988, 993 (Pa. Super. 1983)

(citations omitted).

       Contrary to the Commonwealth’s argument, Rule 573 does not shield

all late disclosures.     The trial court’s ruling on a motion in limine weighs

potentially prejudicial evidence and may preclude it before it reaches the

jury, “thus reducing the possibility that prejudicial error could occur at trial

which would force the trial court to either declare a mistrial in the middle of

the case or grant a new trial at its conclusion.” Commonwealth v. Metzer,

634 A.2d 228, 232 (Pa. Super. 1993) (internal citations omitted). 4        One

basis to preclude testimony is when the adverse party would “be prejudiced

as a result of the testimony going beyond the fair scope of the expert’s

report.”   Whitaker v. Frankford Hosp., 984 A.2d 512, 523 (Pa. Super.

2009) (quoting Coffey v. Minwax Co., 764 A.2d 616, 620-621 (Pa. Super.



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4
  The purpose of requiring disclosure of “‘the substance of the facts and
opinions to which the expert is expected to testify’ is to avoid unfair surprise
by enabling the adversary to prepare a response to the testimony.”
Whitacre, 984 A.2d at 522 (quoting Corrado v. Thomas Jefferson Univ.
Hosp., 790 A.2d 1022, 1029 (Pa. Super. 2001) (citation omitted)); see also
Shelton, 640 A.2d at 895 (“It is well established in this Commonwealth that
the purpose of the discovery rules is to permit the parties in a criminal
matter to be prepared for trial.”).



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2000) (citation omitted)).5         Moreover, “a ruling on a pre-trial motion in

Limine provides counsel with a basis upon which to structure trial strategy.”

Metzer, 634 A.2d at 232.

       Here, the trial court found that the introduction of the addendum after

jury selection and less than one week before the scheduled trial date would

prejudice Appellee. See Trial Ct. Rule 1925(a) Op., 11/19/2015, at 7; cf.

Manchas, 633 A.2d at 626 (holding that an appellant was not entitled to

exclusion of testimony without demonstrating prejudice). We agree. First,

the medical evidence of scarring and the testimony of the victim alone may

be sufficient for a conviction under Pennsylvania law.        See Trial Ct. Rule

1925(a) Op., 11/19/2015, at 5-6. Second, the conclusions as to causation

in the addendum were not “under a reasonable degree of medical certainty

which is a prerequisite to the admission of the report.” N.T., 10/13/2015, at

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5
  It is permissible for the trial judge to apply the “fair scope rule” and limit
testimony to a pre-trial report to avoid the potential for prejudice at trial:

       An expert's testimony on direct examination is to be limited to
       the fair scope of the expert's pre-trial report. In applying the fair
       scope rule, we focus on the word “fair.” Departure from the
       expert's report becomes a concern if the trial testimony ‘would
       prevent the adversary from preparing a meaningful response, or
       which would mislead the adversary as to the nature of the
       response.’ Therefore, the opposing party must be prejudiced as
       a result of the testimony going beyond the fair scope of the
       expert's report before admission of the testimony is considered
       reversible error.

Whitaker, 984 A.2d at 522.



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10.   Third, “the supplemental report could be construed as cumulative

evidence, as the report contains opinions as to the causation of the

complainant's injuries, and the complainant, 17-year-old J.K., has at all

times been ready, willing, and able to testify to the same.” Trial Ct. Rule

1925(a) Op., 11/19/2015, at 7.

      We hold that exclusion of the addendum was proper in this instance

because “the prejudice will go beyond surprise” if Dr. Kupchella were

permitted to testify outside of the scope of her Pre-Trial Expert Report on

the causation of Complainant’s injuries.      Johnson, 456 A.2d at 933.      The

trial court did not abuse its discretion in limiting Dr. Kupchella’s testimony to

the fair scope of her report. See Whitaker, 984 A.2d at 523. The ruling

appropriately takes into account the potential prejudice without foreclosing

Dr. Kupchella’s testimony entirely. Cf. Smith, 955 A.2d at 395. Thus, we

discern no abuse of discretion.       Accordingly, the trial court’s order is

affirmed.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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