J-S82007-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
PIERRE LAVON TATUM,                        :
                                           :
                  Appellant                :    No. 1708 WDA 2016

      Appeal from the Judgment of Sentence Entered October 13, 2016
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0014257-2015

BEFORE:        BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

                                                      FILED APRIL 06, 2018

      I join the majority memorandum as to the first issue.           I write

separately only as to Appellant’s second issue, and I would affirm on a basis

different than that of the Majority.

      Appellant’s second issue, whether the trial court abused its discretion

in admitting an exhibit, arose on October 4, 2016, when the Commonwealth

offered Exhibit 2(d) into evidence.    Exhibit 2(d) “is a spreadsheet created

from the phone dumps that are of the text messages between two people”

that was put into “spreadsheet format so it is easier for everybody to

understand.” N.T., 10/4/2016, at 103.          The “actual phone dumps” were

admitted as Exhibit 2(c).     Counsel for Appellant objected, stating that she

just learned of Exhibit 2(d) “last night.” Id. at 105. She asked for time to

* Former Justice specially assigned to the Superior Court.

**Retired Senior Judge assigned to the Superior Court.
J-S82007-17


review it. The trial court granted that request, stating that to the extent the

Commonwealth was using Exhibit 2(d) as a trial aid, it was admissible

pursuant to Pa.R.E. 10061 so long as Appellant had the opportunity to

examine it.    The Commonwealth then agreed not to use Exhibit 2(d) until

the following day to provide Appellant the opportunity to review it. Id. at

109.

        The parties returned to court the following morning, and the

Commonwealth moved for the admission of Exhibit 2(d).                       Appellant

objected, arguing that the Commonwealth should not be permitted to use

Exhibit    2(d),   because   the   “discovery”   was   provided     too   late.   N.T.,

10/5/2016, at 117.

        The Majority concludes that the trial court did not err in admitting

Exhibit    2(d),   because   Appellant   could   not   point   to   any    prejudice.

Specifically, the Majority points out that “[a]lthough the Commonwealth




1   That rule provides:

        The proponent may use a summary, chart, or calculation to
        prove the content of voluminous writings, recordings, or
        photographs that cannot be conveniently examined in court. The
        proponent must make the originals or duplicates available for
        examination or copying, or both, by other parties at a reasonable
        time and place. And the court may order the proponent to
        produce them in court.

Pa.R.E. 1006.


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violated the discovery rules in a technical sense, the resulting prejudice was

minimal.” Majority, at 19.

       However, Exhibit 2(d) is not discovery; rather, it is a summary of

Exhibit 2(c), which is admissible evidence that was provided in discovery.

Accordingly, based on Pa.R.E. 1006, the trial court did not err in admitting

Exhibit 2(d), because Appellant had an opportunity to review it prior to its

use.




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