J-S34045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SONYA I. RILL

                         Appellant                   No. 1588 MDA 2014


       Appeal from the Judgment of Sentence imposed July 11, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No: CP-67-CR-0001556-2014


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 27, 2015

      Appellant, Sonya I. Rill, appeals from the judgment of sentence

imposed on July 11, 2014 in the Court of Common Pleas of York County

following her conviction of theft of services and defiant trespass. Appellant

contends the trial court committed error warranting a new trial by refusing

to preclude testimony of Appellant’s oral confession to police, a confession

not disclosed to either the prosecutor or Appellant’s counsel until after trial

commenced.      Because the prosecution was not in possession or control of

the confession until trial was underway and disclosed the confession to

defense counsel as soon as it was known, we find no violation of
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Pa.R.Crim.P. 5731 or abuse of discretion in allowing testimony relating to the

confession. Therefore, we affirm.

       In her brief, Appellant offered the following factual background:

       Appellant [] overstayed her welcome at the Red Carpet Inn
       located at 351 Lewisberry Road in York County. According to the
       owner, [Appellant] had rented a room on February 4, 2014 on
       the promise to pay, but then continued residing in the room,
       making several promises to pay, before [the owner] eventually
       gave her notice to vacate. When she refused, [the owner] called
       the police who arrested [Appellant] charging her with Theft of
       Services and Defiant Trespass.

       Officers from the Fairview Township Police Department appeared
       on scene to handle the situation and eventually arrested
       [Appellant]. [Appellant] was argumentative with the officers.
       She claimed they could not force her to leave, that it was a
       landlord/tenant issue, and that they had no authority to arrest
       her. To one of the officers[] who arrested her, she never made
       any statements that she had refused to pay. Relevant to this
       appeal, however, is a conversation [Appellant] had with Officer
       Michael Bennage after she was Mirandized and while she was in
       custody. The conversation took place while Officer Bennage was
       transporting her to central booking.       According to Officer
       Bennage, [Appellant] admitted to him that she was not going to
       pay, thus in essence “confessing” to the Theft of Services.

Appellant’s Brief at 8 (references to Notes of Trial Testimony omitted).


____________________________________________


1
  Rule 573(B)(1)(b) requires, inter alia, that the Commonwealth disclose to
defendant’s attorney “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[.]” Rule 573(D) directs that “[i]f, 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[,] such party shall promptly notify the opposing
party or the court of the additional evidence [or] material[.]”



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     Trial in the matter took place on July 10, 2014.            As Appellant

explained:

     Both parties gave opening statements to the jury and [defense
     counsel] presented a defense surrounding the Commonwealth’s
     ability to prove [Appellant’s] intent to commit the crimes
     charge[d]. After both parties opened, the [c]ourt recessed for a
     lunch break. Upon returning to the court room, the prosecutor
     provided [defense counsel] with a hand written “police report.”
     This report was generated by Officer Bennage after [defense
     counsel] gave her opening statement outlining her defensive
     strategy. [Defense counsel] observed Officer Bennage drafting a
     document she believed to be the statement during the break.

Id. at 9-10.

     The trial court provided the following additional background:

     During a break at trial, and out of the hearing of the jury, both
     counselors and this [c]ourt discussed the potential admission of
     the statement in question. [Defense counsel] stated her belief
     to the [c]ourt that the supplemental statement [relating to
     Appellant’s oral confession] was written by Officer Bennage
     during opening statements or just after. The initial reaction of
     the [c]ourt was to bar admission of the written statement. The
     [c]ourt declined to rule, at that time, on the potential
     admissibility of statements indicating the officer had similar prior
     dealings with [Appellant] in which she admitted to knowing she
     could not pay for hotel rooms in case such statements would
     have been appropriate for rebuttal. [The prosecutor] stated to
     the [c]ourt that he was not seeking to admit the written
     statement. Rather, [the prosecutor] sought to admit statements
     [Appellant] made to [the officer] regarding her knowledge, at
     the time she procured the room, that she lacked sufficient funds
     to obtain the room. [The prosecutor] informed the [c]ourt that it
     was his understanding that the statements were made after
     [Appellant] had been given Miranda warnings.           The [c]ourt
     informed [defense counsel] that she was free to cross-examine
     Officer Bennage regarding the circumstances surrounding the
     production of the statement to [d]efense counsel.




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Trial Court Rule 1925(a) Opinion, 1/25/15, at 1-2 (references to Notes of

Trial Testimony omitted).

      The jury found Appellant guilty on both charges.        The trial court

imposed a sentence of probation plus costs and restitution.         Trial Court

Order, 9/29/14.    Appellant filed a post-sentence motion, arguing she was

prejudiced by the introduction of evidence of her confession after trial had

commenced and counsel had laid out her “lack of intent” defense strategy in

her opening statement. Appellant asserted the prejudice was not eliminated

by having the opportunity to cross-examine Officer Bennage.                The

prosecution countered that it had complied with Rule 573 by providing all

discovery in its possession prior to trial.

      The trial court denied Appellant’s post-sentence motion, noting that:

      [W]here the Commonwealth is not in possession of the disputed
      statement, they are under no obligation to provide it to
      [Appellant]. In other words, statements made to an officer that
      are not related to the attorney for the Commonwealth are not
      subject to mandatory disclosure under Rule 573. Such is the
      case here. The Commonwealth was not in possession of the
      supposed confession prior to the commencement of trial. The
      Commonwealth alerted defense counsel to the existence of the
      confession as soon as [the prosecutor] became aware that
      Officer Bennage was claiming [Appellant] had made inculpatory
      statements to him.

Trial Court Rule 1925(a) Opinion, 1/29/15, at 9 (citing Commonwealth v.

Sullivan, 820 A.2d 795, 804 (Pa. Super. 2003), appeal denied, 833 A.2d

143 (Pa. 2003)).

      The sole issue Appellant presents for our consideration is:


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       1. Whether Appellant is entitled to a new trial because the trial
          court erred when it denied Appellant’s request to preclude
          testimony of a confession Appellant made to the police when
          such confession was disclosed to trial counsel after trial
          commenced in violation of Pa.R.Crim.P. 573?

Appellant’s Brief at 7.

       For a challenge to the admissibility of evidence, this Court applies the

following standard of review:

       Our standard of review for a trial court’s evidentiary rulings is
       narrow, as the admissibility of evidence is within the discretion
       of the trial court and will be reversed only if the trial court has
       abused its discretion. Commonwealth v. Hanford, 937 A.2d
       1094, 1098 (Pa. Super. 2007), appeal denied, 598 Pa. 763, 956
       A.2d 432 (2008). An abuse of discretion is not merely an error
       of judgment, but is rather the overriding or misapplication of the
       law, 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. Mendez, 74 A.3d 256,
       260 (Pa. Super. 2013), appeal denied, [624 Pa. 688], 87 A.3d
       319 (2014).

Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014).

       Appellant argues the trial court committed error warranting a new trial

when it denied her request to preclude inculpatory evidence that was not

disclosed in advance of trial as required by Pa.R.Crim.P. 573.2 We cannot

agree.     The evidence in question, while known to the officer whose

testimony was at issue, was not known by the prosecutor until trial



____________________________________________


2
    Although Appellant argues trial court error, we review the trial court’s
ruling using an abuse of discretion standard. See Melvin, 103 A.3d at 35.



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commenced.        Adopting language from the trial court opinion, this Court

recognized in Commonwealth v. Piole, 636 A.2d 1143 (Pa. Super. 1994):

        It has been held that the prosecution does not violate the
        discovery rules in instances where it fails to provide the defense
        with evidence that it does not possess or of which it is unaware
        during pre-trial discovery, even if the evidence is in police
        custody. Commonwealth v. Bonacurso, 500 Pa. 247, 455
        A.2d 1175 (1983), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090,
        77 L.Ed.2d 1350 (1983). Such is the case here.

Id. at 1145 (brackets omitted).3 While the ruling in Piole does not apply to

exculpatory evidence or Brady4 violations, see, e.g., Commonwealth v.

Burke, 781 A.2d 1136 (Pa. 2001), it does apply to the situation before us in

which the inculpatory evidence was not in the possession or control of the

prosecutor prior to trial. As our Supreme Court stated in Commonwealth

v. Collins, 957 A.2d 237 (Pa. 2008):

        The Commonwealth does not violate Rule 573 when it fails to
        disclose to the defense evidence that it does not possess and of
        which it is unaware. Commonwealth v. Boczkowski, 577 Pa.
        421, 846 A.2d 75, 97 (2004) (citing Commonwealth v.
        Gribble, 550 Pa. 62, 703 A.2d 426 (1997)).

        As the text of Rule 573(B)(1) suggests, when the evidence is
        exclusively in the custody of police, possession is not attributed
        to    the    Commonwealth     for    purposes   of    Rule    573.
        Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1142
        (2001).     Whether the Commonwealth’s failure to disclose
        evidence that is exclusively in police custody constitutes a
        violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
____________________________________________


3
  The rule examined in Piole, Pa.R.Crim.P. 305, was renumbered as
Pa.R.Crim.P. 573 effective April 1, 2001.
4
    Brady v. Maryland, 373 U.S. 83 (1963).



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       L.Ed.2d 215 (1963), of course, is a different matter. If the
       undisclosed evidence implicates Brady (i.e., if it is favorable to
       the accused and its non-disclosure resulted in prejudice to his
       case), then the Commonwealth is charged with its possession
       even while it is exclusively in the custody of police. Kyles v.
       Whitley, 514 U.S. 419, 437–38, 115 S.Ct. 1555, 131 L.Ed.2d
       490 (1995); Burke, 781 A.2d at 1142 & n. 6 (making this
       distinction between Brady cases and Rule 573 cases).

Id. at 253.

       In Sullivan, this Court commented:

       Here, the Commonwealth did, in fact, turn over all of the
       statements of the defendant, including a tape-recorded
       statement and others reflected in the police reports. Although
       the disputed statement by [the trooper] can certainly be
       characterized as inculpatory, disclosure of such a statement
       under Rule 573(B)(1)(b) is limited by the express terms of the
       rule to any statement “that is in the possession or control of the
       attorney for the Commonwealth.” Pa.R.Crim.P. 573(B)(1)(b).
       The Commonwealth was not in possession of the disputed
       statement, therefore the prosecution had no obligation to
       provide it to the defense. Perhaps our Supreme Court will
       someday interpret its rule to apply to inculpatory statements in
       the possession of the police but not known to the prosecution, as
       is the case for exculpatory statements by virtue of [Kyles v.
       Whitley, 514 U.S. 419 (1995)] and Burke.[5]                As an
       intermediate appellate court, however, our function is to
       ‘maintain and effectuate the decisional law of [the Supreme
____________________________________________


5
  In Sullivan, we recognized that “[o]ur Supreme Court granted review in
Burke in order to examine its previous cases in light of [Kyles], which
extended the prosecution’s duty under Brady to discover and disclose to the
accused ‘favorable evidence known to the others acting on the government’s
behalf in the case, including the police.’” Sullivan, 820 A.2d at 802
(quoting Kyles, 514 U.S. at 437). Again, the evidence of Appellant’s
confession to Officer Bennage was not favorable to Appellant, rendering the
Burke and Kyles line of cases inapplicable to the case before us.
Appellant’s reliance on those cases is misplaced. See Collins, 957 A.2d at
253.



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       Court] as faithfully as possible[,]” Commonwealth v. Dugger,
       506 Pa. 537, 486 A.2d 382, 386 (1985), not to anticipate a
       future ruling of the Court by adopting a new standard. This is
       particularly true in the area of the Court's constitutional rule-
       making authority, where the Court should speak first.

Sullivan, 820 A.2d at 804.6 We conclude the trial court did not abuse its

discretion   by    denying     Appellant’s     request   to   preclude   testimony   of

Appellant’s confession.       Further, “since the Commonwealth committed no

discovery violation, no remedy was required.” Id.7

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2015




____________________________________________


6
 As reflected in Collins, our Supreme Court did not alter its position on the
applicability of Rule 573 to inculpatory statements in the possession of the
police but not known to the prosecution.
7
   We note that Rule 573(E) gives the trial court broad discretion in
formulating remedies in the event a party fails to comply with the discovery
requirements of Rule 573. However, when there is no violation of the rule,
as in the case before us, there is no basis for ordering any sanction,
including the grant of a new trial as Appellant requests.



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