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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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


____________________________________________


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,

                       _______________________
(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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