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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY BENDER, P.J.E.:                           FILED APRIL 06, 2018

        Appellant, Pierre Lavon Tatum, appeals from the judgment of sentence

of time served (13 months’ and 23 days’ incarceration), and a concurrent

term of 6 years’ probation, imposed following his conviction for drug

offenses and related crimes.           Appellant challenges the sufficiency of the

evidence. He also contests the trial court’s decision to admit a spreadsheet

containing a summary of seized text messages, which the prosecution

provided to the defense on the night prior to the first day of trial.        After

careful review, we affirm.

        The trial court summarized the facts adduced at trial as follows:


____________________________________________


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


           On October 4, 2016, prior to the commencement of the
     non-jury trial, a Suppression Hearing was held on the matter of
     whether Officer Modena made a valid vehicle stop on August 22,
     2015.     In opposition to the Suppression Motion, the
     Commonwealth called Officer Modena to testify.

            Officer Modena has been a City of Pittsburgh Police Officer
     since January of 2005 and he has been assigned to Zone 2, the
     Hill District. Officer Modena characterized Zone 2, especially the
     Hill District, as a high crime area with drugs, shootings, drug
     dealing and drug using. On the day in question, August 22,
     2015, Officer Modena was working the p.m. shift.                At
     approximately 4:30pm that day, he observed a gray Jeep
     Cherokee in the area of Bedford Avenue in the Hill District.
     Specifically, the officer described it as the Bedford-Chauncey
     Projects, a high crime area with lots of drugs, shootings and
     firearm arrests.

            On August 22, 2015, Officer Modena observed a white
     female driver in the Jeep and because of the high crime area, he
     attempted to conduct surveillance on the car.                  After
     approximately 10-15 minutes, the vehicle pulled out and Officer
     Modena was able to catch up to the vehicle and follow it down
     Liberty Avenue and 20th Street, where he conducted a traffic
     stop. Officer Modena explained the reason he conducted the
     traffic stop was due to the fact the vehicle had a dark gray
     smoke-covered plate making it hard to read the registration
     plate. After the vehicle stopped, Officer Modena approached the
     vehicle and asked the driver and two passengers for their
     licenses or identification. He then checked the licenses. The
     driver of the vehicle, Ms. Patterson, came back with a suspended
     license. The passengers were identified as Mr. Forsythe (front
     seat passenger) and [Appellant] (rear right side passenger) and
     they were either non-licensed or suspended. Since none of the
     three occupants had a valid driver's license, the officer called for
     a tow truck as standard policy.

           Officer Modena re-approached the vehicle and asked Ms.
     Patterson to exit the vehicle. He informed her that she was
     going to be cited for the obscured plate and suspended license.
     He then approached the passengers and asked them if they had
     any weapons and they advised him they did not. The officer
     then asked for consent to do a pat down check and both agreed.
     There were negative results for weapons and the two passengers
     were moved to the rear of the vehicle.

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           Officer Modena then asked all the occupants if they needed
     anything out of the car: Ms. Patterson requested her purse and
     phone and Mr. Forsythe and [Appellant] retrieved their phones.
     The officer then proceeded to do an inventory to account for …
     valuables in the car as part of the tow policy. On the back
     passenger side where [Appellant] was seated the officer found
     what he believed to be a brick wrapper for packaging heroin, but
     no narcotics were in the wrapper. Officer Modena next found
     under the driver's seat a clear baggy with numerous bundles of
     heroin. He stated he believed it was heroin based on his years
     of training and experience. The drugs and the brick wrapper
     were seized for evidentiary purposes.
                                     ...

            Immediately following the Suppression Hearing, the non-
     jury trial commenced. The Commonwealth called Officer Jordan
     Loscar to testify on its behalf. Officer Loscar has been employed
     with the City of Pittsburgh Police since March 17, 2014. On
     August 22, 2015, he was asked to assist Officer Modena on a
     traffic stop just before 6pm at the location of Liberty Avenue and
     20th Street. When Officer Loscar arrived on the scene, Officer
     Modena was already on the driver's side of the vehicle, so he
     approached the passenger side. As back-up unit, Officer Loscar
     stayed at the passenger side of the vehicle while Officer Modena
     went back to his vehicle to run the information.

            Officer Modena came back to the vehicle and told all the
     back-up officers to pull the occupants out of the vehicle. Officer
     Loscar was responsible for removing [Appellant] from the rear
     passenger side of the vehicle. Officer Modena next advised the
     officers that the occupants were to be placed into custody.
     Officer Loscar placed [Appellant] into custody and put him in the
     rear of his vehicle. Officer Loscar proceeded to gather basic
     information from [Appellant] to verify his identification, phone
     number and address. [Appellant] provided his name as Pierre
     Lavon Tatum; his address as 1016 Lemington Street, Johnstown,
     PA; and phone number as 814-270-330. Officer Loscar testified
     at the time of this traffic stop, he did not notice that [Appellant]
     only provided a 9 digit number. According to Officer Loscar, the
     reason none of [Appellant]'s numbers appeared in the arrest
     report is due to the fact the report will not accept anything lower
     than a 10 digit phone number.

          The Commonwealth's second witness was Officer Todd
     Modena, who previously testified at the Suppression Hearing.

                                    -3-
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     The officer identified Commonwealth's Exhibit 1 to be the five
     bricks of heroin he observed under the driver's seat in a clear
     plastic baggy. Commonwealth's Exhibit 1 (a) is the clear plastic
     baggy that held the bricks of heroin. The officer identified
     Commonwealth's Exhibits 1 (c) and 1 (d) as the crime lab
     reports that analyzed that the drugs in question were, in fact,
     heroin. Officer Modena identified: Commonwealth Exhibit 2 as
     the black Galaxy phone of Ms. Patterson; Exhibit 3 as the Nokia
     phone with the red cover of [Appellant]; and Exhibit 4 as the
     black Motorola cell phone of Mr. Forsythe. According to the
     officer, the phones were submitted to the property room initially
     and once the search warrants were obtained, the Mobile Crime
     Unit detectives performed an analysis of the phones.

           Initially, the detectives had failed attempts to get into the
     phones of Ms. Patterson and [Appellant]. At a later date, Ms.
     Patterson provided the code to access her phone and the
     detectives were successfully able to download her Samsung
     Galaxy phone dumps.

            Finally, Officer Modena testified that Exhibit 8, a photo of
     the floor under the driver's seat, shows that access from under
     the front seat from the front going back was hindered by an
     electrical cord of some type. He also stated that the way he
     went into the vehicle to recover the narcotics was from the back
     and the packaged heroin was dead center under the driver's
     seat.

            The Commonwealth next called Officer Matt Tracy to
     testify. Officer Tracy has been employed as a Pittsburgh Police
     Officer for six years and the past year in the Pittsburgh Police
     Computer Crime Unit. He underwent Secret Service training in
     regards to Cellebrite, which is a program used to analyze phones
     and computers, and has a Bachelor's degree in Information
     Systems. Officer Tracy explained that Cellebrite is a software
     used to dump information from different devices, such as cell
     phones and iPads, etc. The Computer Crime Unit, for example,
     will take a phone, plug it into their computer and the software
     pulls the data from the phone, then the data is put into an
     analyzer that puts it into a readable format. Officer Tracy was
     then recognized as an expert witness in recovery of electronic
     data from cellular phones and other electronic data.

           Officer Tracy personally reviewed the        phone dumps
     performed by Detective Raymond Murray.               He testified


                                    -4-
J-S82007-17


     Commonwealth Exhibit 3(c), a dump from a SIM card from one
     of the three cell phones in evidence, tells him the phone number
     on this phone is 814-270-3306.          Officer Loscar previously
     testified that [Appellant] informed the officer that his cell phone
     number was 814-270-330.

            The Commonwealth and defense counsel stipulated that
     the drugs were packaged with the intent to deliver.          The
     Commonwealth called [Detective] Philip Mercurio to testify as an
     expert in the field of narcotics and as to his review of the text
     messages in this case. He found text messages between Nancy
     Patterson and a person referred to as DC, and the messages are
     clearly indicative of heroin distribution. It further appeared to
     [Detective] Mercurio that the individual referred to as DC on the
     phone dump information was a drug dealer and that Nancy
     Patterson was involved in the distribution of heroin.

           The Court admitted into evidence Commonwealth Exhibit
     2(d), the summary of the cell phone records/text messages
     found on the phone dump from Ms. Patterson's cell phone.
     [Detective] Mercurio found multiple text streams between Nancy
     Patterson and DC that indicate heroin distribution. He was of the
     opinion that the person utilizing the phone number 814-270-
     3306 (DC/[Appellant]) was distributing heroin but was also using
     Nancy Patterson to distribute as well.

           Nancy Patterson was the fifth witness called by the
     Commonwealth. Ms. Patterson admitted she was a co-defendant
     in this case and she identified [Appellant] as the defendant in
     the courtroom. She currently resides in Johnstown and has for
     the past twenty years. She first met [Appellant] [during] the
     summer of 2015 through a friend of her daughter for the
     purpose of purchasing heroin. When the person who introduced
     Ms. Patterson to [Appellant] told her his name, Ms. Patterson
     thought she said DC, but she really said PT. [Appellant] gave
     Ms. Patterson his cell phone number and said to call him if she
     needed anything. Ms. Patterson stored his number in her phone
     and labeled that contact as DC. She would call or text that
     number a lot for the purpose of obtaining heroin, and she
     recognized the voice as that of [Appellant]. She never had any
     reason to believe that the person she was texting was not
     [Appellant].

           A few of the text message streams are summarized as
     follows:


                                    -5-
J-S82007-17


        On 6/8/15 there is an outgoing message to DC.          "You
        around?" DC says yeah.

        "Smoke want to get 2 bags[."] Ms. Patterson testified she
        meant 2 bags of heroin.

        On 7/19/15 there is an outgoing message to DC. "R u
        awake? I need to grab two more—two more them[."] She
        was referring to two more bags of heroin.

        On 8/1/15 there is an incoming message from DC. "Make
        some calls so you can make some money[."]                Ms.
        Patterson replied, "K I will[."] Then, "I can't get ahold of
        anyone[."] She admitted she tried to make some calls to
        sell heroin, but couldn't get ahold of anyone.

        On 8/7/15 Ms. Patterson sent DC a text looking for 2 bags
        of heroin and on 8/11/15 there was an incoming message
        from DC that he had some bags.

        On 8/20/15 Ms. Patterson sent DC a text "How much u
        charge for a bun[."] She explained that a bun equals 10
        stamp bags. DC replied $70.

     []Commonwealth’s Exhibit 2(d).

           On August 22, 2015, Ms. Patterson drove [Appellant] to
     Pittsburgh to pick up heroin and Mr. Forsythe was a passenger in
     the vehicle. She admitted to taking him to Pittsburgh prior to
     August 22, 2015, to get heroin. [Appellant] would compensate
     them for the drive by putting gas in the vehicle and giving them
     a bun or 10 stamp bags of heroin. Once they got closer to
     Pittsburgh, [Appellant] told her where to go in the Hill District.
     They stopped at a housing project.

           After Ms. Patterson parked, [Appellant] exited the vehicle
     and told her to turn the other way. He walked down the street,
     went into an apartment, came back out, crossed the street and
     went into a little corner store. He then walked back down the
     street and entered the vehicle in the rear, but she did not see
     him carrying anything. He told her to pull out and she observed
     an officer, in a marked vehicle, parked and facing her vehicle.
     The officer followed them and eventually hit his lights for them
     to pull over. [Appellant] told her to keep moving, but Ms.
     Patterson said "No, I have to pull over." She put on her turn
     signal pulled over and put the car in park. [Appellant] then


                                   -6-
J-S82007-17


     threw a package up to Ms. Patterson and told her to hide it up
     her dress, but she threw it back to him. Ms. Patterson was
     shown Commonwealth's Exhibit 1 and 1(a). She identified them
     as the plastic baggy and heroin that was thrown at her.

            Mr. Leonard Forsythe was the Commonwealth's final
     witness. He stated he travelled to Pittsburgh on August 22,
     2015 with Nancy Patterson and [Appellant]. They drove up to
     the Hill District: Nancy was driving, Leonard was in the front
     passenger seat and [Appellant]/DC was in the back seat. He
     calls Pierre DC because Nancy told him that was his nickname.

            When they arrived at the apartment building in the Hill
     District, [Appellant] jumped out of the car, ran to the top of the
     hill, then came back down and ran across the street to a little
     corner store. Mr. Forsythe and Ms. Patterson turned to face the
     other way and that's when he noticed a police officer parked up
     on the hill. Next, [Appellant] jumped into the vehicle and they
     started to leave with the police officer following them.

            When they reached Liberty Avenue, the officer activated
     his lights and pulled them over. According to Mr. Forsythe, a
     white bag came flying up to the front seats and [Appellant] said
     to hide this. Nancy Patterson threw the bag back and said
     something to the effect[,] [“]this shit ain't mine, I'm not hiding
     it.[”]

TCO, 5/11/17, at 3-14 (citations to record omitted).

     The Commonwealth charged Appellant with possession with intent to

deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30); possession

of a controlled substance, 35 P.S. § 780-113(a)(16); and criminal conspiracy

(to commit PWID), 18 Pa.C.S. § 903. Appellant filed a motion to suppress

the seized contraband, which the trial court denied following a hearing on

October 4, 2016. This case immediately proceeded to a non-jury trial, with

the parties agreeing by mutual consent to incorporate the testimony from

the suppression hearing. On October 6, 2016, the trial concluded, but for

the rendering of the court’s verdict.   On October 13, 2016, the trial court

                                    -7-
J-S82007-17



found Appellant guilty on all counts, and immediately sentenced him to time

served, plus six years’ probation for PWID, and no further penalty with

regard to the remaining counts.     Appellant filed a timely notice of appeal,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement.        The trial court

issued its Rule 1925(a) opinion on May 11, 2017.

      Appellant now presents the following questions for our review:

      I. Did the Commonwealth fail to present sufficient evidence to
      support [Appellant]'s convictions…?

      [II]. Did the trial court abuse its discretion in admitting Court
      Exhibit A, as the exhibit had only been disclosed to [Appellant]'s
      counsel the night before trial?

Appellant’s Brief at 5.

      Appellant’s first claim concerns the sufficiency of the evidence, and is

three-pronged, but interrelated.      He first argues that the evidence was

insufficient to demonstrate his constructive possession of the seized heroin

based on the circumstances of its discovery.      Second, Appellant contends

that the testimony of Patterson and Forsythe was so “contradictory on the

essential issues” that the resulting verdict constituted mere conjecture on

the part of fact-finder. Id. at 24. Third, Appellant argues that text-message

evidence failed to demonstrate the existence of a conspiracy to commit

PWID. Because the second prong informs Appellant’s claims with respect to

the first and third, we begin our analysis with that issue.

      Our standard of review of sufficiency claims is well-settled:

            A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support

                                     -8-
J-S82007-17


      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Normally, as Appellant acknowledges, claims directed toward the

credibility of witnesses “challenge the weight, not the sufficiency, of the

evidence.” Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012).

Nevertheless, Appellant asserts the exception espoused by our Supreme

Court in Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 1976).              In

Farquharson, the Supreme Court acknowledged the general rule, indicating

that “[t]raditionally[,]   under   our    system of jurisprudence, issues of

credibility are left to the trier of fact for resolution.” Id. at 550. However,

the Court recognized that:

      This concept … must be distinguished from an equally
      fundamental principle that a verdict of guilt may not be based
      upon surmise or conjecture. Following this principle, courts of
      this jurisdiction have recognized that where evidence offered to
      support a verdict of guilt is so unreliable and/or contradictory as
      to make any verdict based thereon pure conjecture, a jury may
      not be permitted to return such a finding.




                                         -9-
J-S82007-17



Id.    The Farquharson Court identified this as the Bennett1 principle.

Accordingly, in extremely limited circumstances, this Court must reject the

credibility assessment of a factfinder on sufficiency grounds.2 Nevertheless,

in Farquharson, our Supreme Court determined that the credibility issues

in that case did not amount to a sufficiency problem.

       Appellant contends that the instant case presents an exception to the

general rule. He argues that Patterson’s testimony was “legally insufficient”

because 1) she initially told police she did not know to whom the heroin

belonged; 2) she was receiving favorable treatment from the Commonwealth

in exchange for her testimony; 3) she was in a romantic relationship with

Forsythe; 4) she was a drug addict; and 5) her testimony was inconsistent in
____________________________________________


1   Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super. 1973).

2 For instance, one could imagine a scenario where all of the elements of a
crime, or the most critical elements, derived solely from a single witness’s
testimony. If the credibility of such testimony was wholly contingent on the
witness’s claim to possess superhuman powers, such as the ability to
observe the alleged criminal conduct through a brick wall (absent any
technological assistance), then an appellate court must reject such a claim
on sufficiency grounds. This is because such testimonial evidence would be
“in contravention to human experience and the laws of nature[.]” Widmer,
supra. Moreover, if the Commonwealth’s case hinges on the testimony of a
single witness, and that testimony is “so contradictory as to render it
incapable of reasonable reconciliation,” it may been deemed insufficient.
Farquharson, 354 A.2d at 550. In other words, the sufficiency standard
assumes the credibility of witnesses, but only up to a point where the
testimony hinges on the factfinder’s acceptance of impossible or virtually
impossible claims, or where conflicting testimony of a single witness cannot
be reasonably reconciled. This Court is not bound to accept, for sufficiency
purposes, any fact that is contingent on pure fantasy.




                                          - 10 -
J-S82007-17



other regards.3      See Appellant’s Brief at 23-26.        Appellant raises similar

arguments about Forsythe’s testimony. Id. at 26-27.

       None    of   these    assertions    concerning    Forsythe’s   or   Patterson’s

credibility give rise to a sufficiency claim under the theories espoused in the

Farquharson/Bennett line of cases.                 In Bennett, the Commonwealth’s

sole witness, Jones, who had confessed to stealing a car, “sought to

implicate the defendant by giving several wholly different, conflicting and

inconsistent versions of when and how he had told her that the car had been

in fact stolen by him,” leading to the defendant’s conviction for receiving

stolen property.      Bennett, 303 A.2d at 220.          “With each new version[,]

Jones would recant the previous one and protest that the newest version

was in fact the true one.”         Id. at 220–21.      This was critical because the

defendant’s knowledge that the car was stolen was the heart of the

Commonwealth’s case against her for receiving stolen property, and Jones’

testimony was the prosecution’s only evidence of such knowledge.

       Unfortunately, the Bennett decision does not detail with specificity

how many times Jones’ story changed, but it does leave a strong impression

that it was not merely once, and that it was not merely a denial upon arrest

coupled with in-court testimony that was inconsistent with that initial denial.

____________________________________________


3 Appellant contends that Patterson testified inconsistently regarding how
she was compensated for providing transportation for Appellant, and
concerning the ownership of the vehicle involved in this incident. See
Appellant’s Brief at 26.



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J-S82007-17



The Bennett decision suggests, instead, that Jones offered the jury

multiple, incompatible statements – at trial – on the critical issue of the

defendant’s knowledge about whether the car was stolen.            None of the

statements were corroborated by any other witnesses or evidence.

      By comparison, in this case, Forsythe and Patterson corroborated each

other’s testimony concerning all the elements of possession, PWID, and

conspiracy.   Neither witness testified inconsistently about the basic, most

critical facts at trial: that Appellant was distributing heroin, and that on the

day in question, Patterson agreed to provide him with transportation for that

purpose.   Appellant’s identification of inconsistent testimony regarding the

means by which he compensated Patterson for her services, as well as her

recollection regarding the ownership of the vehicle, were tangential matters

that were not critical to the elements of the charged offenses in this case.

Moreover, Forsythe and Patterson’s relationship and drug problems were

issues put before the jury to weigh when judging their credibility.       Those

matters do not arise to the level of testimony based on pure fantasy or

impossibility, and the witnesses’ mutual corroboration of the critical facts of

this case is nothing like the internal contradictions of a single witness’s

testimony, as was at issue in Bennett.        Accordingly, we ascertain that the

instant matter is not analogous to the exception recognized in Bennett and

Farquharson. Instead, the general rule applies; therefore, we must reject

this aspect of Appellant’s sufficiency claim.




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      Appellant   also   asserts   that   the   evidence   was   insufficient   to

demonstrate his constructive possession of the seized heroin or the

existence of a conspiracy.

            When contraband is not found on the defendant's person,
      the Commonwealth must establish “constructive possession,”
      that is, the power to control the contraband and the intent to
      exercise that control. The fact that another person may also
      have control and access does not eliminate the defendant's
      constructive possession; two actors may have joint control and
      equal access and thus both may constructively possess the
      contraband. As with any other element of a crime, constructive
      possession may be proven by circumstantial evidence. The
      requisite knowledge and intent may be inferred from
      examination of the totality of the circumstances. The fact that
      the contraband is located in an area usually accessible only to
      the defendant may lead to an inference that he placed it there or
      knew of its presence.

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)

(citations omitted).

      Instantly, Appellant argues:

             The Commonwealth failed to prove [Appellant]'s ability and
      intent to exercise control over the heroin. [Appellant] was one
      of three passengers in the Jeep where the heroin was found. He
      did not own the car and therefore, had no possessory interest in
      its contents. Furthermore, the heroin was found under the
      driver's seat and [Appellant] was seated in the rear of the car.
      Modena testified that there was some kind of electrical cord or
      circuit underneath the driver's seat. Modena did not concede
      that the cord and plug were blocking access to underneath the
      seat. Rather, his exact testimony was, "I would say they [cord
      and plug] would make access a little more difficult since they
      were in the way." The trial court determined that, based partly
      upon Modena's testimony about the seat arrangement, the only
      plausible way for the heroin to get under the driver's seat was
      for [Appellant] to have placed it there.

Appellant’s Brief at 20-21 (citations omitted).

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J-S82007-17



      Appellant concedes, however, that the trial court found Forsythe and

Patterson’s   testimony    to   be    sufficient   to    demonstrate   Appellant’s

constructive possession of the heroin.         Id. at 21.    Patterson specifically

identified the heroin package as having been in Appellant’s possession

immediately prior to its seizure. N.T., 10/4/16–10/6/16, at 204. Forsythe

then corroborated her testimony in this regard. Id. at 250. This testimony

was itself sufficient to demonstrate Appellant’s constructive possession of

the heroin.    See Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa.

Super. 2013) (holding that an officer’s testimony, that he had observed the

defendant “hide two bricks of heroin[,]” was sufficient to demonstrate the

defendant’s constructive possession thereof).           Although Officer Modena’s

testimony further corroborated this fact, his testimony was superfluous to

the direct observations made by Patterson and Forsythe.           Accordingly, we

reject this aspect of Appellant’s sufficiency claim as well.

      Similarly, Appellant contends that the text messages were “manifestly

vague” and, therefore, could not provide sufficient evidence of a conspiracy

in this case. Appellant’s Brief at 27. We disagree. Like Officer Modena’s

testimony regarding Appellant’s constructive possession of the heroin, the

text-message evidence in this case was superfluous to Patterson’s testimony

regarding the elements of conspiracy.          Patterson testified that she was

transporting Appellant for the express purpose of aiding Appellant’s

distribution of heroin. See TCO at 18-19. As such, this aspect of Appellant’s

sufficiency claim also lacks merit.

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         Next, Appellant contends that the trial court abused its discretion when

it admitted a spreadsheet of the text messages discovered on Patterson’s

cellphone. Appellant asserts that the spreadsheet was not disclosed to his

defense attorney until the night prior to trial, in violation of the discovery

rules.

         Pa.R.Crim.P. 573 provides, in pertinent part, as follows:

         (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;[]
                                        ***
         (D) Continuing Duty to Disclose. If, prior to or during trial,
         either party discovers additional evidence or material previously
         requested or ordered to be disclosed by it, which is subject to
         discovery or inspection under this rule, or the identity of an
         additional witness or witnesses, such party shall promptly notify
         the opposing party or the court of the additional evidence,
         material, or witness.

         (E) Remedy. 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.


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J-S82007-17



Pa.R.Crim.P. 573.

           As our Supreme Court has noted: “questions involving
     discovery in criminal cases lie within the discretion of the trial
     court and that court's decision will not be reversed unless such
     discretion was abused.” Commonwealth v. Rucci, 543 Pa.
     261, 283, 670 A.2d 1129, 1140 (1996), cert denied 520 U.S.
     1121, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997). “An abuse of
     discretion is more than just an error in judgment and, on appeal,
     the trial court will not be found to have abused its discretion
     unless the record discloses that the judgment exercised was
     manifestly unreasonable, or the result of partiality, prejudice,
     bias, or ill-will.” Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.
     Super. 2000).

            Our Supreme Court has emphasized: “The purpose of our
     discovery rules is to permit the 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, 547 Pa. 171, 204, 689 A.2d 891,
     907 (1997); Commonwealth v. Moose, 529 Pa. 218, 235, 602
     A.2d 1265, 1274 (1992). Our Court has also recognized that,
     “generally, the purpose of discovery is to accord a defendant the
     opportunity to discover evidence which he did not know existed,
     as well as to seek possession of evidence of which he was
     aware.” Commonwealth v. Fox, 422 Pa. Super. 224, 619 A.2d
     327, 334 (1993), appeal denied 535 Pa. 659, 634 A.2d 222
     (1993) (internal quotation omitted).          Consequently, “the
     Commonwealth should exercise the utmost good faith to disclose
     to defendant all material evidence in its possession when faced
     with a mandatory discovery request.”          Commonwealth v.
     Schwartz, 419 Pa. Super. 251, 615 A.2d 350, 358 (1992),
     appeal denied 535 Pa. 617, 629 A.2d 1379 (1993) quoting
     Commonwealth v. Thiel, 323 Pa. Super. 92, 470 A.2d 145
     (1983).

Commonwealth v. Long, 753 A.2d 272, 276 (Pa. Super. 2000).

     Appellant’s defense counsel first objected to the late disclosure of the

spreadsheet on the first day of trial. N.T., 10/4/16–10/6/16, at 105. The

trial court agreed that the spreadsheet was not timely disclosed to the



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defense, and afforded defense counsel additional time to review the

document.    Id. at 108 (“[W]e’ll give her the night or whatever time she

needs in the morning[.]”). The following morning, defense counsel renewed

her objection when the Commonwealth sought to introduce the spreadsheet

evidence through the testimony of Detective Mercurio. Id. at 116. After a

lengthy discussion about whether the disclosure was untimely (despite the

trial court’s apparent ruling the previous day that it was, in fact, untimely),

see id. at 116-29, the trial court asked defense counsel: “Yesterday when

this issue was raised by you, I [asked] you whether you wanted a

continuance to review the spreadsheet.         Did you have sufficient time

between when you received the summary sheet … and today to review the

sheet?” Id. at 129. Defense counsel responded, “I have.” Id. The court

then asked, “Then what’s the prejudice? Tell me. Because the rule is clear

and the committee notes and comments are clear, the most drastic remedy

this [c]ourt can impose as a sanction is to exclude evidence.” Id. at 129-30.

Under   further   questioning,   defense   counsel   then   admitted   that   the

spreadsheet was a summary of otherwise               admissible   evidence: the

underlying text messages.        Id. at 130.   Defense counsel continued to

demand exclusion of the spreadsheet summary as the only acceptable

remedy for the discovery violation. The trial court refused to exclude it, but

again indicated its willingness to provide defense counsel with another

continuance to review the spreadsheet, and also indicated that it would allow

the defense to call an expert to refute the summary.               Id. at 132.

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Nevertheless, defense counsel ultimately indicated that she was ready to

proceed. Id. at 133.

      Appellant now complains that the trial court’s remedy was not

sufficient to correct the prejudice of the untimely disclosure of the

spreadsheet, stating “the trial court’s remedy of a one-day continuance was

inadequate and simply not enough time for [Appellant’s trial counsel] to

properly prepare how to handle [the spreadsheet].” Appellant’s Brief at 32.

Appellant notes that: “Public [D]efender’s offices are chronically underfunded

and understaffed.” Id.

      However,

      [i]f a discovery violation occurs, the court may grant a trial
      continuance or prohibit the introduction of the evidence or may
      enter any order it deems just under the circumstances.
      Pa.R.Crim.P. 573(E) (formerly Rule 305(E)). The trial court has
      broad discretion in choosing the appropriate remedy for a
      discovery violation. Commonwealth v. Johnson, 556 Pa. 216,
      727 A.2d 1089 (1999). Our scope of review is whether the court
      abused its discretion in not excluding evidence pursuant to Rule
      573(E). Id. (citing Commonwealth v. Jones, 542 Pa. 464,
      668 A.2d 491 (1995)).

              A defendant seeking relief from a discovery violation must
      demonstrate prejudice. Id. (citing Commonwealth v.
      Counterman, 553 Pa. 370, 719 A.2d 284 (1998)). A violation
      of discovery “does not automatically entitle appellant to a new
      trial.” Jones, 668 A.2d at 513 (Pa. 1995). 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.      Id. (citing Commonwealth v.
      Chambers, 528 Pa. 558, 599 A.2d 630, 636–38 (1991) (no
      error in denial of mistrial motion for untimely disclosure where
      appellant cannot demonstrate prejudice)).

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003).


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      We conclude that the trial court did not abuse its discretion when it

declined to exclude the spreadsheet based on the Commonwealth’s

discovery violation. Appellant did not complain at trial that the initial one-

day continuance was inadequate to prepare a strategy to respond to the

spreadsheet. Instead, in formalistic fashion, Appellant’s counsel insisted on

exclusion as the only acceptable remedy, despite her indication that she was

able to proceed after the court offered a second continuance to review the

untimely-disclosed evidence. Indeed, Appellant provided no argument as to

how or why the purported prejudice resulting from the late disclosure was

inadequately remedied by the additional time afforded to review the

document. Additionally, the resulting prejudice was necessarily minimal, as

defense counsel conceded at trial that the spreadsheet was merely a

summary of otherwise admissible evidence, and thus could not properly be

characterized as an attempt to ambush the defense. There is no indication

that anything in the spreadsheet was exculpatory in nature.        Moreover,

when offered even more time to review the document, or the opportunity to

obtain an expert to refute the spreadsheet, defense counsel declined.

      Accordingly, we conclude that the trial court did not abuse its

discretion when it refused to exclude the spreadsheet.          Although the

Commonwealth violated the discovery rules in a technical sense, the

resulting prejudice was minimal. Furthermore, the trial court’s remedy was

proportional to the violation, if not outright generous to the defense.

Consequently, Appellant’s second claim lacks merit.

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     Judgment of sentence affirmed.

     President Judge Emeritus Stevens joins this memorandum.

     Judge Strassburger files a concurring memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2018




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