J-S11042-17


    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1351 WDA 2016
    ROBERT PETER GILL, JR.

               Appeal from the Order Entered September 2, 2016
                 In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0000908-2015



BEFORE:      OLSON, RANSOM, JJ., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 06, 2019

       The Commonwealth appeals from the September 2, 2016, order entered

in the Court of Common Pleas of Mercer County granting Appellee Robert Peter

Gill, Jr.’s amended motion in limine for the admission of evidence of similar

crimes, behaviors, and/or acts, as well as granting Appellee’s pre-trial

discovery motion.1 The Commonwealth’s appeal is before us pursuant to the

Pennsylvania Supreme Court’s Opinion of March 26, 2019, which reversed, in

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1 The Commonwealth certified in its notice of appeal that the trial court’s order
terminated or substantially handicapped its prosecution of Appellee. See
Pa.R.A.P. 311(d). Also, we note that the Commonwealth’s appeal from the
discovery order constitutes a collateral order subject to review.            See
Commonwealth v. Frey, 41 A.3d 605 (Pa.Super. 2012) (holding appeal from
order requiring the Commonwealth to disclose investigative material in a
related case was appealable as a collateral order since it implicated rights
deeply embedded in public policy).
* Former Justice specially assigned to the Superior Court
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part, and vacated, in part, our March 28, 2017, disposition and remanded to

us for consideration of an outstanding appellate issue.          After careful

consideration, we affirm.

      Our Supreme Court relevantly set forth the facts and procedural history

underlying this appeal, in part, as follows:

            On June 2, 2015, Trooper Charles Turik of the Pennsylvania
      State Police filed a criminal complaint against [Appellee] charging
      him with, inter alia, burglary, theft by unlawful taking, receiving
      stolen property, and criminal trespass. The supporting affidavit of
      probable cause explained, in relevant part, as follows.
             On August 26, 2013, Trooper Turik was assigned to
      investigate an alleged burglary that occurred between July 26,
      2013, and August 26, 2013, at Howard Speichler’s residence on
      West Creek Road in French Creek Township. When Trooper Turik
      interviewed Speichler, he informed the trooper that someone had
      stolen $40,000 in $100 bills from his home. Speichler advised the
      trooper that he had been keeping the money in a bank bag inside
      of a lockbox in his basement and that the last time he knew that
      the money was still in the lockbox was July 26, 2013, when he
      placed his monthly deposit into the bag. Speichler explained that,
      since that time, he had not observed any signs of a forced entry
      into the home and that he suspected that the person who had
      stolen the money entered his home by way of the keypad for his
      garage door.
            Speichler further stated that two persons knew both the
      garage code and where he kept his money: his neighbor and
      [Appellee], who was Speichler’s acquaintance. Speichler asserted
      that he did not suspect that his neighbor had stolen the money
      because Speichler had known her for over 25 years and trusted
      her. He further asserted that he had known [Appellee] for only a
      few years and that [Appellee] had financial problems, including a
      recent bankruptcy. Trooper Turik also interviewed [Appellee],
      who admitted that he knew: about Speichler’s money; that
      Speichler kept his money in the lockbox; and where Speichler put
      the key to that lockbox. The trooper’s investigation also revealed,
      inter alia, that [Appellee] recently had purchased a truck for
      $19,000 and that he had paid for the truck with $100 bills.



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              [Appellee]  was     arrested   and    charged    with   the
       aforementioned crimes. Eventually, prior to his trial, [Appellee]
       filed a document entitled “Motion for Release of Investigatory
       Files/Omnibus Pretrial Motion.” In the motion, [Appellee] averred
       that he had just became aware, by way of articles in local
       newspapers, that Speichler accused another unknown person of
       stealing money from a safe located in his home between May 1,
       2016, and June 23, 2016. To inspect potential similarities
       between the 2013 and 2016 burglaries of Speichler’s home,
       [Appellee] asked the trial court to enter an order allowing him to
       access the State Police’s investigatory file concerning the 2016
       incident. The court granted [Appellee’s] motion.[2]
             On August 1, 2016, [Appellee] filed a document entitled
       “Motion In Limine for Admission of Evidence of Similar Crimes”
       (“Motion In Limine”).       Building upon his previous motion,
       [Appellee] stated that his review of the State Police’s file revealed
       substantial similarities between the 2013 burglary and incidents
       that occurred at Speichler’s residence in 2016. Regarding the
       2016 incident, [Appellee] indicated that Speichler accused an
       unknown person of entering and burglarizing his home on two
       occasions – June 23, 2016, and June 26th or 27th of 2016.
             [Appellee] stated that the allegations regarding the June 23,
       2016, burglary appeared to be virtually identical to the
       circumstances surrounding the 2013 burglary that he was accused
       of perpetrating. Specifically, [Appellee] averred that the June 23,
       2016, incident involved: (1) approximately $40,000 in stolen
       money; (2) money stolen from a safe/lockbox; (3) a perpetrator,
       perhaps known by Speichler, who used a key to access the
       safe/lockbox; (4) no sign of forced entry; rather, the perpetrator
       entered the home through a door that Speichler typically kept
       unlocked; [(5)] a perpetrator who knew about the safe/lockbox;
       and [(6)] a crime that occurred within a one-month time range.

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2 Specifically, by order entered on July 13, 2016, the trial court directed the
Commonwealth to permit defense counsel to review the police reports
pertaining to the burglary allegations occurring between May 1, 2016, and
June 23, 2016. The order did not pertain to the June 26/27, 2016, burglary
allegations. Further, the order indicated the Commonwealth was not required
to provide copies of the materials to defense counsel and specifically
prohibited defense counsel from sharing with Appellee the information
contained in the investigatory files without further court order.          The
Commonwealth did not appeal the July 13, 2016, order.

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     [Appellee] did not describe the alleged June 26/27, 2016, incident
     in detail. In fact, he conceded that this incident differed from the
     other two burglary allegations in that it involved a forced entry
     into Speichler’s home.
           Regarding the admissibility of evidence concerning both the
     June 23rd and June 26th/27th incidents, [Appellee] contended that
     “[e]vidence is always relevant and material if it tends to show a
     specific crime of which a [d]efendant stands accused was
     committed by someone else.” Motion In Limine at ¶ 12. More
     specifically, [Appellee] relied on the Superior Court’s decision in
     Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385
     (1981), for the proposition that a defendant may introduce
     evidence at trial that someone else committed a crime which bears
     a highly detailed similarity to the crime with which the defendant
     is charged. Motion In Limine at ¶ 14. [Appellee] further
     suggested that Speichler’s two newer, 2016 burglary allegations
     raise questions as to Speichler’s credibility and memory. Id. at ¶
     20. [Additionally, in this motion, Appellee requested copies of the
     “June 2016 investigative reports” be provided to Appellee, with
     the restriction that the reports would be used solely in the course
     of Appellee’s trial.] Id. at ¶ 22.
            On August 25, 2016, prior to the trial court ruling on his
     Motion In Limine, [Appellee] filed another document, which he
     entitled “Amended Motion In Limine for Admission of Evidence of
     Similar Crimes, Behavior and/or Acts” (Amended Motion In
     Limine). In this motion, [Appellee] indicated that Speichler’s
     daughter, Sandra Speichler (“Sandra”), was prepared to testify
     that Speichler accused her of breaking into his home and stealing
     $30,000 in 1995. According to [Appellee], Sandra was also willing
     to testify that Speichler had informed her that two other persons,
     William Flamm and Roy Hiles, had broken into his home and stolen
     tools. Thus, in addition to the 2016 incidents regarding Speichler’s
     residence, [Appellee] asked the trial court to permit him to
     present evidence at trial that Speichler had accused Sandra,
     Flamm, and Hiles of stealing from his home.
           On August 29, 2016, the trial court entertained oral
     argument of [Appellee’s] Amended Motion In Limine. [Appellee’s]
     argument was consistent with the position that he took in his
     written motions, i.e., that all of Speichler’s other burglary
     allegations were similar in nature to the allegations made against
     [Appellee], and therefore, tended to show that someone other
     than [Appellee] committed the 2013 break-in and that Speichler’s
     credibility was faulty. The Commonwealth, on the other hand,

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       contended that the trial court should deny the Amended Motion In
       Limine because the circumstances surrounding the 2013 burglary
       were insufficiently similar to the various incidents cited by
       [Appellee], rendering evidence of those incidents inadmissible at
       trial.
                                           ***
              At the end of the hearing, the trial court denied in part and
       granted in part [Appellee’s] Amended Motion In Limine.
       Specifically, the court decided not to allow [Appellee] to present
       testimony from Sandra. However, the court believed that the June
       23, 2016, burglary was significantly similar and close enough in
       time to the 2013 burglary to allow [Appellee] to present evidence
       of it at his trial. Accordingly, the court entered an order reflecting
       “that the incident from 2016 shall be permitted.” Trial Court
       Order, 9/2/2016. In the same order, the court directed the
       Commonwealth to provide [Appellee] “all reports, statements and
       investigatory files regarding the 2016 incident[.]”[3] Id.
                                        ***
             The trial court subsequently offered a brief Pa.R.A.P.
       1925(a) opinion. In support of its decision to grant in part
       [Appellee’s] motion, the court noted several similarities between
       the 2013 and June 23, 2016, burglaries. In particular, the court
       observed that the “victim was the same, the amount of money
       was the same, there was no sign of forced entry, and the lockbox
       was accessed with a key.” Trial Court Opinion, 10/19/2016, at 1.
       The court further observed that it “found that these similarities
       were relevant” and that “the probative value of these facts
       outweighed the prejudicial effect to the victim.” Id. The court
       believed that, at a minimum, [Appellee] should be permitted to
____________________________________________


3 As the Supreme Court noted, the trial court’s order was unclear as to whether
the order related solely to the June 23, 2016, burglary or whether it included
the subsequent June 26/27, 2016, burglary allegation. Out of an abundance
of caution, in our initial decision, this Court addressed the admissibility of
evidence concerning both 2016 incidents.          However, upon review, the
Supreme Court concluded that the trial court’s order related solely to the
admissibility of the June 23, 2016, burglary, and Appellee had preserved solely
issues related thereto. Commonwealth v. Gill, ___ A.3d ___, 2019 WL
1348188, *3 n. 1 (Pa. filed 3/26/19). Similarly, the trial court’s order directing
the Commonwealth to provide Appellee with all reports, statements, and
investigatory files regarding “the 2016 incident” pertains solely to the June
23, 2016, burglary.

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      cross-examine Speichler about the similarities between the 2013
      and the June 23, 2016, burglaries.

Commonwealth v. Gill, ___ A.3d ___, 2019 WL 1348188 (Pa. filed 3/26/19)

(footnote omitted) (footnotes added) (internal citation omitted).

      Additionally, in its Rule 1925(a) opinion, as to granting Appellee’s

request for copies of the investigatory files for the June 23, 2016, burglary,

the trial court explained the following:

      With respect to the furnishing of investigatory files, this Court
      notes the previous court order dated July 11, 2016[,] issued by
      the Honorable Robert Yeatts. That order allowed Appellee access
      to the investigative files for the 2016 burglary. However, the
      Commonwealth was not required to provide copies. In light of the
      order of August 29, 2016, this Court finds it would now be
      appropriate for the Commonwealth to furnish copies with the
      understanding that [defense] counsel will not disseminate any
      information from those files without further order of court.

Trial Court Opinion, filed 10/16/2016, at 2.

      As indicated supra, the Commonwealth filed a notice of appeal from the

trial court’s order, and in a published Opinion, this Court held that the 2013

and 2016 burglaries were not so similar, distinctive, or unusual to suggest

that they were the handiwork of one individual. Commonwealth v. Gill, 158

A.3d 719 (Pa.Super. 2017). “Based on the aforementioned, and additionally

in light of the remoteness of time between the 2013 and 2016 incidents,” we

held the trial court erred in permitting the entry of evidence from the 2016




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burglaries.4 Id. at 727. Consequently, we reversed the trial court’s order and

remanded for further proceedings.

       In light of our holding, we specifically noted that it was unnecessary for

us to address the Commonwealth’s remaining issue: whether the trial court

erred in ordering the Commonwealth to provide Appellee with copies of all

reports, statements, and investigatory files regarding the 2016 burglary

incident. See id. at 727 n. 5. Specifically, we noted the trial court ordered

such disclosure solely in support of its ruling that the 2016 incident was

admissible to prove Appellee did not commit the 2013 burglary, and as we

reversed the order, it was unnecessary to address the remaining issue.5 See

id.

       Appellee subsequently filed a petition for allowance of appeal, which our

Supreme Court granted. Specifically, the Supreme Court granted allowance

of appeal to address the narrow issue of whether this Court applied the

appropriate standard of review in reversing the trial court’s order. Ultimately,




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4As indicated supra, due to the ambiguous nature of the trial court’s order,
we addressed the admissibility of the evidence regarding both the June 23,
2016, burglary and June 26/27, 2016, burglary allegations; however, our
Supreme Court concluded the trial court’s order related solely to the
admissibility of the June 23, 2016, burglary.

5 As indicated supra, the trial court’s order directing the Commonwealth to
furnish copies of the investigative reports pertains solely to the June 23, 2016,
burglary.

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the Supreme Court concluded this Court “effectively substituted its judgment

for that of the trial court.” Gill, supra, 2019 WL 1348188, at *7.

      Further, noting it was “intimately familiar with the application of the

abuse-of-discretion standard of review,” id., the Supreme Court undertook its

own review of the trial court’s order to determine whether the trial court

abused its discretion in concluding the June 23, 2016, burglary was admissible

at Appellee’s trial for the 2013 burglary. After indicating the admissibility of

the evidence was “a close call,” and “[u]ltimately, reasonable minds may differ

as to how a trial court should rule on [Appellee’s] Amended Motion In

Limine[,]” the Supreme Court concluded the appellate court should defer to

the trial court’s ruling. Id. at *7-8.

      Thus, the Supreme Court reversed this Court’s decision insomuch as it

reversed the trial court’s order granting Appellee’s motion in limine.

Additionally, the Supreme Court vacated the portion of this Court’s decision

related to the issue of whether the Commonwealth was required to provide

Appellee with copies of all reports, statements, and investigatory files

pertaining to the June 23, 2016, incident, and remanded to this Court so that

we could consider this remaining issue. With this procedural history in mind,

we now turn to the Commonwealth’s remaining claim.

      The Commonwealth contends the trial court abused its discretion in

ordering the Commonwealth to provide Appellee with copies of the reports,

statements, and investigatory files pertaining to the June 23, 2016, burglary.


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Specifically, the Commonwealth contends the material is not subject to

mandatory discovery under Pa.R.Crim.P. 573(B)(1), and to the extent

Appellee sought discovery of the material under Pa.R.Crim.P. 573(B)(2), the

trial court abused its discretion.

      Decisions involving discovery matters are within the sound discretion of

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

Commonwealth v. Smith, 955 A.2d 391, 394 (Pa.Super. 2008) (en banc).

“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).

      Initially, we note the trial court’s September 2, 2016, discovery order at

issue, which directed “the Commonwealth shall provide to the defendant

copies of all reports, statements and investigatory files regarding the 2016

incident,” was premised upon, in part, the trial court’s July 13, 2016, order,

which directed “the Commonwealth shall secure or provide access to the police

reports contained in the Pennsylvania State Police investigation concerning

allegations relating to the burglary/theft of the victim, Howard Speichler,

between the dates of May 1, 2016, and June 23, 2016.” As indicated supra,

the Commonwealth did not challenge on appeal the propriety of the July 13,

2016, order. In any event, for the reasons discussed infra, we conclude the


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trial court did not abuse its discretion in directing the Commonwealth to

provide copies of all reports, statements, and investigatory files to Appellee

regarding the June 23, 2016, burglary.

      Pennsylvania Rule of Criminal Procedure 573 relevantly sets forth the

following regarding disclosure of materials by the Commonwealth:

      (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.
         (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;
         (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.

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       (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;
           (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.

Pa.R.Crim.P. 573(B) (emphasis in original).

       In the case sub judice, assuming, arguendo, the materials do not fall

under Pa.R.Crim.P. 573(B)(1)’s mandatory discovery provision, we conclude

the trial court did not abuse its discretion in ordering the Commonwealth 6 to

disclose the requested items pursuant to Pa.R.Crim.P. 573(B)(2)(a)(iv).

Under this Rule, Appellee had the burden of proving (1) his request for the

copies of the reports, statements, and investigatory files pertaining to the


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6 We note the Commonwealth has not averred the items are not in its
possession.

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June 23, 2016, burglary was material to the preparation of his defense, (2)

the request was reasonable, and (3) the information disclosed by the request

would be in the interests of justice. Commonwealth v. Garcia, 72 A.3d 681,

684 (Pa.Super. 2013).

      With regard to Appellee’s burden of proving the requested information

was material and reasonable, Appellee was required to show a reasonable

probability that the information gained from the discovery would lead to

evidence that would exonerate him. See Commonwealth v. Belenky, 777

A.2d 483 (Pa.Super. 2001). Here, Appellee sought discovery of the reports,

statements, and investigatory files pertaining to the June 23, 2016, burglary

on the basis that the items would demonstrate that he did not commit the

2013 burglary with which he was charged. In this vein, Appellee averred in

his pre-trial motion that the circumstances surrounding the 2016 burglary

were identical to the circumstances surrounding the 2013 burglary allegation,

thus leading to the conclusion that the same person committed both crimes.

      Inasmuch as our Supreme Court granted allowance of appeal and held

in the instant case that the trial court did not abuse its discretion in permitting

Appellee to present evidence at trial regarding the 2016 burglary on the basis

it was so “substantially similar” to the 2013 burglary as to reveal the

handiwork of one individual, we conclude the trial court did not abuse its

discretion in finding the requested items from the 2016 investigation were

material and reasonable for purposes of Appellee’s preparation of his defense


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for his trial on the 2013 burglary charges.7 Additionally, it follows that such

disclosure would be in the interests of justice.8 See Garcia, supra.


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7 On appeal, the Commonwealth argues the instant case is indistinguishable
from Commonwealth v. Novasak, 606 A.2d 477 (Pa.Super. 1992), in which
this Court held the trial court did not abuse its discretion in denying the
discovery request of the appellant, who was charged with various crimes after
he pretended to be a police officer to gain access to a home. The appellant in
Novasak sought information concerning police investigations of other
robberies allegedly perpetrated by an actor who impersonated a police officer.
However, in concluding the trial court properly denied the discovery request,
this Court noted the appellant in Novasak never proffered to the trial court
the theory that he was the victim of a mistaken identification or that the
charged offenses were committed by some other person. Consequently, in
Novasak, we held the appellant did not establish that the police reports as to
the other robberies perpetrated by police impersonators were material or the
request was reasonable.
      However, in the case sub judice, unlike in Novasak, Appellee asserted
to the trial court that he was not the person who committed the 2013 burglary
and, as held by our Supreme Court, the trial court did not err in concluding
the 2013 burglary and the June 23, 2016, burglary were so substantially
similar that Appellee could present evidence that the person who committed
the June 23, 2016, burglary was also the person who committed the 2013
burglary with which Appellee was charged.

8  We note the Commonwealth also refers to the common-law “executive
privilege” recognized in Commonwealth v. Kauffman, 605 A.2d 1243
(Pa.Super. 1992), for the proposition that the trial court erred in ordering the
Commonwealth to disclose privileged material. Assuming, arguendo, the
Commonwealth adequately asserted the privilege in the lower court, the
Commonwealth’s argument fails.
        “Th[e executive privilege for information from government investigative
files] is not absolute but qualified; and, when asserted, requires the court to
balance the government’s interest in ensuring the secrecy of the documents
whose discovery is sought against the need of the private litigant to obtain
discovery of the relevant materials in possession of the government.” Id. at
1247. Further, it has been observed that “the great majority of cases that
have considered the discoverability of law enforcement investigations have
held that in general such discovery should be barred in ongoing investigations,



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       For all of the foregoing reasons, we affirm.

       Affirmed.

       Judge Ransom did not participate in the consideration or decision of
       this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2019




____________________________________________


but should be permitted when the investigation and prosecution have been
completed.” Id.
      Here, as Appellee notes in his brief, the investigation pertaining to the
June 23, 2016, burglary of Mr. Speicher’s home is not ongoing. See Appellee’s
Brief at 23-24. Rather, a review of the Court of Common Pleas of Mercer
County’s certified docket reveals that Jamie Patrick Erdley pled guilty with
regard thereto and was sentenced. See CP-43-CR-0001836-2016. Thus, the
Commonwealth cannot demonstrate an interest in ensuring the secrecy of
information that outweighs the need of Appellee to discover information which
supports his claim that he did not commit the 2013 burglary. Id. Moreover,
we note the trial court has directed that, while the Commonwealth is to furnish
copies of the materials to defense counsel, such order was entered “with the
understanding that [defense] counsel will not disseminate any information
from those files without further order of court.” Trial Court Opinion, filed
10/19/16, at 2.

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