J-A23007-17


                                  2017 PA Super 387

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                     Appellant                 :
                                               :
              v.                               :
                                               :
MICHAEL SANTOS,                                :
                                               :
                     Appellee                  :   No. 22 EDA 2015


               Appeal from the Order Entered December 15, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0002209-2014

BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J.*

OPINION BY DUBOW, J.:                                FILED DECEMBER 11, 2017

       The Commonwealth appeals from the December 15, 2014 Order entered

by the Philadelphia County Court of Common Pleas                  prohibiting the

Commonwealth from calling a police officer at trial to remedy the

Commonwealth’s purported discovery violation.            After careful review, we

reverse.

       Between June 17, 2013, and July 2, 2013, Philadelphia narcotics police

officers conducted surveillance at 3205 and 3207 Rorer Street. On June 17,

2013, Philadelphia Police Officer Stephen Dmytryk observed Appellee enter

and exit 3205 and 3207 Rorer Street,1 and sell 43 packets of crack cocaine to

a confidential informant (“CI”) using pre-recorded buy money.


____________________________________________


1 Officer Dmytryk testified that 3207 Rorer Street was an abandoned house
that had a board and padlock out front that required a key to enter.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      On July 1, 2013, Officer Dmytryk, assisted by Officers Kapusniak and

Kuhn, conducted a second controlled buy using a CI. As Officer Kapusnick

looked on, Officer Dmytryk searched the CI before and after the transaction.

The officers observed the CI hand pre-recorded buy money to Appellee, who

then entered 3205 Rorer Street, exited shortly thereafter, and handed 38

packets of crack cocaine to the CI.

      On July 2, 2013, Officer Dmytryk, assisted by Officer Kapusniak,

returned to the area and observed Appellee enter and exit 3205 Rorer Street.

Officer Dmytryk observed Appellee bend down near a parked green Ford

Explorer, and then conduct four drug sales.

      Later that afternoon, Officer Dmytryk called for backup officers to arrest

Appellee and assist in executing a search warrant. Officer Hagins arrested

Appellee and recovered $49.     Officer Hagins recovered one pill bottle with

seven packets of heroin and one pill bottle with 13 packets of crack cocaine

from the back seat of the green Ford Explorer.

      From 3205 Rorer Street, police recovered $303, Appellee’s Pennsylvania

ID card, new and unused clear ziplock packets, and a set of keys that opened

both 3205 and 3207 Rorer Street. From 3207 Rorer Street, police recovered

278 packets of marijuana, and 308 packets of heroin that matched the packets

of drugs recovered from the green Ford Explorer.

      The Commonwealth charged Appellee with Possession of a Controlled

Substance With Intent to Deliver (“PWID”), Criminal Conspiracy, and


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Possession of a Controlled Substance.2           On February 27, 2014, Officer

Dmytryk testified to the above facts as the Commonwealth’s only witness at

Appellee’s preliminary hearing, and the court held Appellee for trial on all

charges.

        Appellee requested a jury trial, which the trial court scheduled for

November 8, 2014. On August 7, 2014, Appellee filed a Motion for Discovery3

seeking information related to a federal indictment, unsealed in July 2014,

charging six Philadelphia police officers with numerous federal crimes,

including violation of the Racketeer Influence and Corrupt Organizations Act.

United States v. Thomas Liciardello, Brian Reynolds, Michael Spicer,

Perry Betts, Linwood Norman, John Speiser, No. 2:14-cr-00412-ER

(E.D.Pa. filed July 29, 2014). Significantly, Officer Dmytryk was not one of

the six indicted officers, and none of the six indicted officers played any role

in Appellee's case. Paragraph 87 in the indictment alleged that a Philadelphia

police officer, referred to only as “S.D.,” had falsified a police report in an

unrelated criminal case against Kenneth Mills in 2011.4 Appellee, believing


____________________________________________


2 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903; and 35 P.S. § 780-113(a)(16),
respectively.

3   Appellee had filed an Omnibus Pre-Trial Motion on April 15, 2014.

4 On August 6, 2014, Appellee also sent a letter to the Philadelphia District
Attorney’s Office’s East Bureau Chief requesting discovery related to Officer
Dmytryk.



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“S.D.” referred to Officer Dmytryk, requested any information or documents

related to investigations of Officer Dmytryk in the possession of the

Philadelphia District Attorney’s Office or the Philadelphia Police Department

(“PPD”). Appellee also sought any documents related to the state case against

Kenneth Mills in 2011, and any other Brady5 material. Appellee essentially

sought to obtain any information substantiating Paragraph 87 in order to

support a similar argument in his case, i.e., that Officer Dmytryk also falsified

paperwork related to the instant PWID case against Appellee.

       On August 12, 2014,6 Appellee served a subpoena duces tecum on the

PPD seeking any relevant documents related to Officer Dmytryk, including,

inter alia, internal affairs investigations of Officer Dmytryk, any files related

to an alleged joint FBI/PPD task force, any documents related to the case

against Kenneth Mills in 2011, and any Brady material. On August 14, 2014,

the City of Philadelphia filed a Motion to Quash Appellee’s subpoena.

       On August 22, 2014, the trial court conducted a hearing, and an

Assistant City Solicitor for the City of Philadelphia appeared on behalf of the


____________________________________________


5See Brady v. Maryland, 373 U.S. 83 (1963) (finding it is a violation of a
defendant’s right to due process to withhold evidence that is favorable to the
defense and material to the defendant’s guilt or punishment).

6 In its Pa.R.A.P. 1925(a) Opinion, the trial court referenced an August 11,
2014 discovery hearing at which the parties purportedly discussed Appellee’s
discovery Motion off the record. We note that the certified record does not
include a transcript of this hearing or discussion.



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PPD to address Appellee’s subpoena.              Regarding internal investigations

against Officer Dmytryk, the City agreed to comply and turn over information

regarding three investigations of prior complaints against Officer Dmytryk.7

Regarding the case against Kenneth Mills in 2011, the City agreed to comply

and turn over any information in its possession regarding that case.

       At this hearing, the scope of the dispute over the subpoena narrowed to

Appellee’s request for information to substantiate Paragraph 87 in the

indictment alleging that Philadelphia Police Officer “S.D.” had falsified a police

report in an unrelated criminal case against Kenneth Mills in 2011. Citing

press releases and the grand jury’s indictment, Appellee argued that the PPD

must have a separate file as a result of its work with the FBI in a joint task

force investigating the six indicted police officers.

       The City responded that it did not have any information that Appellee

alleged had substantiated Paragraph 87 in the federal indictment. The City

explained that any Philadelphia police officers involved had been deputized by

the FBI as part of the purported joint task force, and the FBI had “controlling

authority” over the investigation and its files. Essentially, the City claimed

that Appellee should have subpoenaed the FBI.            The trial court held this




____________________________________________


7The trial court concluded that a fourth investigation was not relevant and did
not require the City to turn over those documents.



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portion of the City’s Motion to Quash under advisement.8 Appellee requested

a continuance in order to subpoena a PPD sergeant assigned to the purported

joint FBI/PPD task force.

       On September 4, 2014, Appellee filed a Motion to Compel Discovery,

and the trial court held a hearing on September 12, 2014, at which

Philadelphia Police Sergeant Gerard Deacon testified.9       Sergeant Deacon,

assigned to the “FBI Corruption Task Force,” testified that he was deputized

by the FBI as a federal agent, but the PPD paid his salary. Sergeant Deacon

testified that the PPD does not keep their own file regarding the FBI Corruption

Task Force, explaining that “[e]verything stays on the federal side. I report

to the [PPD] the investigation when there’s an indictment coming down, of

course.      But as far as any paperwork that has to do with [a] federal

investigation, none of that gets handed over to the [PPD].” N.T., 9/12/14, at

17. In response to the trial court’s question, Sergeant Deacon clarified that

that the PPD had not received any documentation or memos regarding an

investigation into Paragraph 87 in the federal indictment referencing “S.D.”

Id. at 19.

____________________________________________


8The trial court remarked that “the City Solicitor’s hands are tied. He can’t
obtain documents that he didn’t update or he doesn’t have the authority to
produce. I think you have to go through the federal agent.” N.T., 8/22/14,
at 24.

9 Officer Dmytryk also testified briefly that he was assigned to the Narcotics
Field Unit and continued to work and make arrests.



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J-A23007-17


       As part of his duties on the FBI Corruption Task Force, Sergeant Deacon

testified that he had knowledge of corroborating information to substantiate

the single paragraph in the federal indictment referencing “S.D.” However,

Sergeant Deacon could not reveal this information “under federal grand jury

rules.” N.T., 9/12/14, at 14.10 The trial court appeared to credit Sergeant

Deacon’s testimony, stating that “I take him on his word.”          Id. at 30.

Nevertheless, the trial court ordered the City to request the FBI file and “to

do their due diligence to see if there’s any memos or other type of paperwork

that’s been passed [to the PPD].” Id.

       On October 1, 2014, in response to the City’s request, the U.S.

Attorney’s Office stated in a letter that the police report previously passed to

Appellee contained “the names of all witnesses known to the government

concerning that search. Any additional items, including notes of testimony

and/or documents concerning that search, are not subject to disclosure under

grand jury secrecy rules. See Federal Rule of Criminal Procedure 6(e)(2).”

Letter from U.S. Attorney Zane Memeger and Assistant U.S. Attorney Anthony

J. Wzorek, dated October 1, 2014.



____________________________________________


10Federal Rule of Criminal Procedure 6 governs the Federal Grand Jury process
and secrecy rules. Rule 6(e)(2)(B) defines individuals “who must not disclose
a matter occurring before the grand jury[,]” including “an attorney for the
government[,]’” with certain exceptions for disclosure provided in Rule
6(e)(3). See also 18 U.S.C. § 3322 (entitled “Disclosure of certain matters
occurring before grand jury”). “A knowing violation of Rule 6 . . . may be
punished as a contempt of court.” Fed.R.Crim.P. 6(e)(7).

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     On October 9, 2014, the trial court held another discovery hearing. The

City submitted the October 1, 2014 letter from the U.S. Attorney, as well as a

copy of an October 7, 2014 letter the U.S. Attorney had sent to Officer

Dmytryk’s attorney stating that Officer Dmytryk was not the subject of any

investigation with respect to the arrest cited in Paragraph 87 of the federal

indictment.   The Commonwealth asserted that it had complied with its

obligations under the discovery rules and Brady and it had turned over all

documents under its control. The Commonwealth also argued that counsel

had not reached out to any of the witnesses mentioned in the October 1, 2014

letter. The Commonwealth further argued that Appellee had presented no

evidence that the purported documents or information actually contained

Brady material. The trial court continued the hearing to provide Appellee the

opportunity to contact and interview each of the witnesses who the U.S.

Attorney had mentioned in his October 1, 2014 letter.

     On November 14, 2014, the trial court held another discovery hearing.

Appellee reported that he had reached out to all witnesses in the police

paperwork mentioned in the October 1, 2014 letter, but was unable to

interview any of them.      With respect to the custody of the allegedly

undisclosed materials, the trial court acknowledged that the PPD “does not

have any documents,” and orally sanctioned the Commonwealth for its failure

to obtain the documents from the FBI. The court then ordered as a discovery




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sanction that Officer Dmytryk would be precluded from testifying as a witness

in Appellee’s trial. N.T., 11/14/14, at 6.

      The trial court did not enter a formal written Order, and the docket

entries do not reflect the trial court’s oral Order. On December 15, 2014, the

trial court conducted a status hearing to remedy this oversight and issued a

formal Order precluding Officer Dmytryk from testifying as a witness in

Appellee’s trial based on the Commonwealth’s purported discovery violation.

      When clarifying its prior Order, the trial court stated as follows: “I’m

speaking of any documentation that the FBI or the police department have

that supports the finding or it supports that paragraph in their indictment that

states that this officer falsified documents, as we don’t know what those

documents -- I don’t know if they’re documents generated by the police

department, documents generated by the FBI. I just know, by the detective’s

testimony, that there are documents out there.” N.T. 12/15/14, at 7-8.

      On December 22, 2014, the Commonwealth filed an interlocutory appeal

pursuant to Pa.R.A.P. 311(d). See Commonwealth v. Smith, 955 A.2d 391,

392 n.3 (Pa. Super. 2008) (en banc) (noting “that the Commonwealth was

entitled to take an appeal from the trial court’s [discovery] ruling”).

      The Commonwealth presents one issue for our review:

      Did the lower court err in barring the Commonwealth from
      presenting the testimony of a police officer as a sanction for not
      producing discovery materials that were in the exclusive
      possession and control of the federal government?

Commonwealth’s Brief at 4.

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J-A23007-17


      “Decisions involving discovery matters are within the sound discretion

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

Smith, supra at 394. While the trial court retains the discretion to fashion

an appropriate remedy when a party has violated the discovery rules, such

discretion is not unfettered. Id. at 395. “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.”

Commonwealth v. Antidormi, 84 A.3d 736, 749-50 (Pa. Super. 2014)

(citations omitted).

      The Commonwealth avers that the trial court erred in precluding Officer

Dmytryk’s testimony at trial as a sanction for its purported violation of both

the discovery rules and Brady.

      Pre-trial discovery in criminal cases is governed by Pennsylvania Rule of

Criminal Procedure 573. The rule lists certain items and information that are

subject to mandatory disclosure by the Commonwealth when they are: (1)

requested by the defendant, (2) material to the case, and (3) within the

possession or control of the prosecutor.

      Relevant to this appeal, mandatory discovery includes:

      (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;

Pa.R.Crim.P. 573(B)(1)(a).


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     The Rule also contains a remedy provision, which provides:

     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(E).

     “[W]here the evidence is equally accessible or inaccessible to both the

Commonwealth and the defense, the defense cannot use the discovery rules

against the Commonwealth for its failure to produce the evidence.”

Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003) (citation

omitted). “Where evidence is equally accessible to both the prosecution and

the defense, the latter cannot employ [the discovery rules] against the

Commonwealth.      The converse is also true where evidence is equally

inaccessible, i.e., the defense cannot use [the discovery rules] as a means to

force the Commonwealth to produce evidence to which the Commonwealth

has no access, either.” Commonwealth v. McElroy, 665 A.2d 813, 821 (Pa.

Super. 1995).

     As our Supreme Court has noted, “[t]he law governing alleged Brady

violations is well-settled.” Commonwealth v. Lambert, 884 A.2d 848, 853

(Pa. 2005).   It is a violation of a defendant’s right to due process for the

Commonwealth to “withhold[] evidence that is favorable to the defense and




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material to the defendant’s guilt or punishment.” Smith v. Cain, 565 U.S.

73, 75 (2012) (citing Brady).

      To prevail on a claim that the Commonwealth has committed a Brady

violation, “an appellant must prove three elements: (1) the evidence at issue

is favorable to the accused, either because it is exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.”    Commonwealth v.

Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations omitted).

      “Pursuant to Brady and its progeny, the prosecutor has a duty to learn

of all evidence that is favorable to the accused which is known by others acting

on the government’s behalf in the case, including the police.” Id. (citation

omitted).   Thus, the Commonwealth’s obligation “extends to exculpatory

evidence in the files of police agencies of the same government bringing the

prosecution.” Id.

      Significant to this appeal, our Supreme Court has clarified that “the

Commonwealth’s Brady obligation does not extend to information that is not

in its possession, but rather is in the possession of the federal government, a

different governing authority.” Commonwealth v. Roney, 79 A.3d 595, 610

(Pa. 2013). See also Commonwealth v. Simpson, 66 A.3d 253, 267 (Pa.

2013) (“While the prosecution is responsible for ensuring the government’s

Brady responsibilities are met as regards evidence under the control of the




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police, [] we have not held Commonwealth prosecutors responsible under

Brady for information held by federal authorities…”).

      With respect to materiality, “the mere possibility that an item of

undisclosed information might have helped the defense, or might have

affected the outcome of the trial, does not establish materiality in the

constitutional sense.” Commonwealth v. Miller, 987 A.2d 638, 655 (Pa.

2009) (citation omitted).

      After careful review, we conclude that the trial court erred as a matter

of law in concluding that the requested material is “mandatory discovery”

under Pa.R.Crim.P. 573(B)(1)(a). In order to qualify as mandatory discovery,

Appellee was required to identify and explain the actual evidence at issue.

See Miller, supra at 655 (“the mere possibility that an item of undisclosed

information might have helped the defense. . . does not establish materiality

in the constitutional sense.”).       Without such specificity, the dictates of

Pa.R.Crim.P. 573(B)(1)(a) cannot be met as it is not possible to determine

whether the material exists, whether it is relevant and material, and whether

the Commonwealth possesses the material.          Appellee has utterly failed to

meet this important initial burden.

      Moreover, whatever the nature of this evidence, the court concluded it

was not within the      possession or       control of the   attorney for   the

Commonwealth. When the Commonwealth asserted that it had “passed all of

the documents” under its control, the trial court replied, “I know that’s your


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representation, and I’m not doubting what you’re representing to the Court.”

N.T., 12/15/14, at 8-9. When the Commonwealth asked the trial court to

make a formal finding on this point, the trial court agreed and stated as

follows: “I will put on the record that the Commonwealth has advised the

[c]ourt -- and I take your representation as true -- that you have passed every

bit of documentation provided to you by the [PPD] as their complete file.”

N.T., 12/15/14, at 10-11.

      The trial court later opined that Sergeant Deacon’s             testimony

established that there was, in fact, evidence presented to the federal grand

jury to substantiate the grand jury’s allegations that, with respect to Mills,

“Officer Dmytryk falsified the PARS report and misrepresented facts of the

case.” The court noted, however, that because of grand jury rules, Sergeant

Deacon could not specify what evidence corroborated Paragraph 87 in the

federal indictment. Trial Court Opinion, 6/20/16, at 14.

      Thus, even the trial court could only speculate about the nature of the

requested information. See, e.g., id. at 13-14 (referring to the unspecified

materials as “requested materials,” “requested files/documents” that “could

be favorable,” “such evidence,” “the requested items,” “known favorable

evidence”). Appellee may not rely on his own or the trial court’s speculation

in order to establish materiality. See Pa.R.Crim.P. 573(B)(1)(a). Thus, the

trial court erred as a matter of law in concluding that the potential material is

mandatory discovery under Pa.R.Crim.P. 573(B)(1)(a).


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      With respect to Appellee’s contention that the Commonwealth violated

Brady, as described above, the PPD did not and could not possess the

evidence pertaining to the federal indictment’s Paragraph 87 because the

materials in question are protected by grand jury secrecy rules.        See

Fed.R.Crim.P. 6(e)(2).    Our case law provides that the Commonwealth’s

Brady obligation does not extend to this information possessed exclusively by

federal authorities.   See Weiss, supra at 783; Roney, supra at 610;

Simpson, supra at 267. Thus, the trial court also erred as a matter of law

in concluding that the Commonwealth violated Brady.

      Based on the foregoing, we conclude that the trial court erred as a

matter of law in precluding Officer Dmytryk from testifying as a witness in

Appellee’s trial.

      Order reversed. Case remanded for further proceedings consistent with

this Opinion. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2017




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