J-A04001-15

                                  2015 PA Super 115

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

BRIAN J. ROLES,

                            Appellant                     No. 1652 WDA 2013


         Appeal from the Judgment of Sentence September 25, 2013
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001464-2012


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                                       FILED MAY 08, 2015

       Brian J. Roles appeals from the aggregate judgment of sentence of

eight and one-half to seventeen years’ incarceration after a jury found him

guilty of homicide by vehicle while driving under the influence (“DUI”) of

alcohol or controlled substances, homicide by vehicle, aggravated assault by

vehicle while DUI, involuntary manslaughter, two counts of recklessly

endangering      another     person     (“REAP”),   DUI—second     offense   general

impairment, DUI—second offense highest rate, and DUI—second offense

drug and alcohol combination.1           After careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The court also found Appellant guilty of three summary offenses: driving
while his license was suspended—DUI-related, careless driving, and public
(Footnote Continued Next Page)
J-A04001-15


       The facts of this case arise out of a vehicle collision in which

Appellant’s sixteen-year-old son was killed.             At approximately 10:30 or

10:45 p.m. on Easter Sunday, April 8, 2012, Appellant was driving his truck

with his son in the front passenger seat. Kevin Roles, Appellant’s nephew,

was seated in a rear passenger seat.             Appellant lost control of his vehicle

and struck a utility pole. The accident caused his son to be ejected from the

vehicle. Appellant’s son was flung approximately fifty feet from the vehicle

and pronounced dead at the scene.

       Officer Shaun Gregory arrived on the scene at approximately 10:57

p.m.    Appellant admitted to him that he had been driving the vehicle.

According to Appellant, he was driving northbound when another car

traveling in the opposite direction entered his lane of travel, causing him to

lose control and swerve off the roadway onto an embankment. The officer

further observed that Appellant had glassy bloodshot eyes, slurred his

speech, and smelled of alcohol.             Accordingly, Officer Gregory requested

another officer to transport Appellant to Conemaugh Hospital for blood

testing. While being transported, Appellant repeatedly asked if he killed his

son.   Blood alcohol testing revealed that Appellant had a blood alcohol

content (“BAC”) of .17%. In addition, Appellant’s blood tested positively for

oxycodone and alprazolam, commonly known respectively as Oxycontin and
                       _______________________
(Footnote Continued)

drunkenness.     The jury acquitted Appellant of DUI—while under the
influence of any combination of drugs.



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Xanax. Appellant also admitted to Dr. Matthew Perry, a treating emergency

room doctor, that he had been driving.           The Commonwealth filed the

criminal complaint in this matter on July 30, 2012. Appellant turned himself

in to authorities on August 6, 2012. The case proceeded to trial on August

22, 2013, when jury selection began.

       At trial, in addition to the above-referenced facts, the Commonwealth

provided testimony from Corporal Thomas Carrick, a Pennsylvania State

Trooper and accident reconstructionist, and Greg Sullenberger, an accident

reconstructionist and expert in occupant kinematics.2         Corporal Carrick,

during examination by the court, testified that he no longer held the view he

expressed in his report that the roof of the truck impacted the utility pole.

Instead, he explained, under questioning by the court, that his opinion was

now consistent with Mr. Sullenberger as to the place of impact.          In this

respect, the Commonwealth’s experts opined that the truck’s sidestep bar on

the passenger side struck the pole.

       Mr. Sullenberger also testified that the victim’s injuries were consistent

with having been expelled from the passenger side of the vehicle.          Kevin

Roles originally testified that Appellant’s son had been driving.      However,

later in the trial, without the Commonwealth having sought the testimony,

he tearfully recanted his earlier statements and asserted that Appellant had
____________________________________________


2
  Occupant kinematics involves the study of how the body moves inside a
vehicle during a crash.



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been the driver.       In contrast, Appellant provided expert testimony from

Thomas Laino expressing that Appellant’s son had been driving.           The jury

elected to credit the Commonwealth’s evidence and found Appellant guilty of

the aforementioned charges. The court imposed sentence, and this timely

appeal ensued.

       The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.         Appellant complied,

and the trial court authored its opinion. Appellant raises three issues for this

Court’s review.3

       I.     Whether the Trial Court abused its discretion and/or
              committed an error of law when it denied Appellant's
              Motion to Dismiss Charges with Prejudice pursuant to
              Pa.R.Crim.P. 600?

       II.    Whether the Trial Court erred in sending with the Jury, the
              Report of Eric Roslonski, MD, which has been marked as
              Commonwealth's Exhibit 73 but was not admitted into
              evidence?

       III.   Whether the Trial Court erred in not excluding the
              testimony of Corporal Thomas Carrick and/or not issuing a
              cautionary or curative instruction to the Jury relative to his
              expert opinion which was not provided to the Defense prior
              to trial?
____________________________________________


3
  Based on factual disputes arising between the parties relative to two of
Appellant’s issues, this Court entered a limited remand order for the trial
court to clarify whether a Rule 600 hearing was conducted and if certain
evidence was submitted to the jury when it retired for deliberations. The
court clarified that a Rule 600 proceeding did occur but was unable to
conclusively resolve the evidentiary issue. We discuss that matter in more
detail infra.




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Appellant’s brief at 4.

       Appellant’s initial claim relates to Pa.R.Crim.P. 600. Rule 600 requires

the Commonwealth to try a defendant within 365 days of the filing of a

criminal complaint.4 A defendant, however, is not automatically entitled to

discharge under Rule 600 where trial starts more than 365 days after the

filing of the complaint.      Commonwealth v. Goldman, 70 A.3d 874, 879

(Pa.Super. 2013). Rather, Rule 600 “provides for dismissal of charges only in

cases in which the defendant has not been brought to trial within the term of

the adjusted run date, after subtracting all excludable and excusable time.”

Id.    The adjusted run date is calculated by adding to the mechanical run

date, i.e., the date 365 days from the complaint, both excludable and

excusable delay. Id.

       Excludable time includes delay caused by the defendant or his lawyer.

Id.   Concomitantly, excusable delay occurs where the delay is caused by

“circumstances beyond the Commonwealth's control and despite its due

diligence.” Id.      “Due diligence is a fact-specific concept that must be

determined on a case-by-case basis. Due diligence does not require perfect

____________________________________________


4
  Effective July 1, 2013, the Pennsylvania Supreme Court adopted a new
Rule 600. The new rule reflects prevailing case law. Pa.R.Crim.P. 600,
Comment. The criminal complaint in question was filed prior to the
alteration; therefore, we apply the former rule. Commonwealth v. Brock,
61 A.3d 1015, 1016 n.2 (Pa. 2013).




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vigilance and punctilious care, but rather a showing by the Commonwealth

that   a   reasonable   effort   has   been   put   forth.”   Commonwealth     v.

Armstrong, 74 A.3d 228, 236 (Pa.Super. 2013) (citation omitted).

       Additionally, when considering Rule 600, we remain cognizant that

Rule 600 serves two purposes. While it is intended to protect a defendant’s

speedy trial right, it also protects society’s interest in prosecuting crime.

Accordingly, where “there has been no misconduct on the part of the

Commonwealth in an effort to evade the fundamental speedy trial rights of

an accused, Rule 600 must be construed in a manner consistent with

society's right to punish and deter crime.” Id. at 235.

       “In evaluating Rule 600 issues, our standard of review of a trial court's

decision is whether the trial court abused its discretion.” Commonwealth v.

Peterson, 19 A.3d 1131, 1134 (Pa.Super. 2011) (en banc). Further, we

review “the facts in the light most favorable to the prevailing party.” Id. at

1135. Our scope of review is “limited to the evidence on the record of the

Rule 600 evidentiary hearing, and the findings of the trial court.” Id. The

Commonwealth has the burden of establishing by a preponderance of the

evidence that it exercised due diligence throughout the prosecution.

Commonwealth v. Selenski, 994 A.2d 1083 (Pa. 2010).

       Instantly, Appellant was charged on July 30, 2012.        Accordingly, his

mechanical run date was July 30, 2013. Jury selection began on August 22,

2013, twenty-three days beyond the mechanical run date. Appellant did not


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J-A04001-15


request any continuances and filed a Rule 600 motion on August 19, 2013.

The court denied that motion, finding that Appellant was unavailable for trial

from July 30, 2012 until September 17, 2012, because his public defender

had not entered an appearance.           In its subsequent Pa.R.A.P. 1925(a)

opinion, the court added that Appellant was unavailable for trial as a result

of a stay in an alcohol rehabilitation center.

      Appellant   argues    that   the   trial   court   erred     in    relying   on

Commonwealth v. Solano, 906 A.2d 1180 (Pa. 2006), in determining that

“all time during which a defendant lacks an attorney should be excluded[.]”

Appellant’s brief at 10.    He maintains that only “delays attributed to a

defendant’s lack of representation shall be excluded.”           Id.    According to

Appellant, his lack of an attorney did not cause a delay in the case.              He

notes that he did not seek a continuance of the preliminary hearing nor did

he request any continuances.

      In addition, Appellant submits that the court erred in finding that the

period of time in which he was furloughed to a rehabilitation center was

excludable. Appellant argues that the cases relied upon by the trial court for

this position, Commonwealth v. Williams, 445 A.2d 537 (Pa.Super.

1982), and Commonwealth v. Cohen, 392 A.2d 1327 (Pa. 1978), do not

support that proposition.     Williams involved a defendant who did not

appear for his preliminary hearing in Delaware County.            A bench warrant

was then issued. Subsequently, Williams was arrested and incarcerated in


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Philadelphia.     Delaware County was initially unaware of that arrest and

under then-Rule 1100, the predecessor to Rule 600, received an extension

to bring the defendant to trial. This Court held that Williams was unavailable

from the time that he failed to appear at his preliminary hearing until the

date the Commonwealth became aware of his incarceration.

       Cohen also involved Rule 1100. There, the trial court dismissed the

case after determining that the Commonwealth sought an extension beyond

the 180 day period.           On appeal, the Superior Court affirmed, but was

reversed by the Pennsylvania Supreme Court. The Cohen Court ruled that

the defendants’ failure to appear for arraignment was attributable to them

and that the extension period had therefore not elapsed.

       Similar to the trial court, the Commonwealth posits that from August

7, 2012 until September 17, 2012, Appellant was unavailable due to his

voluntary commitment in a rehabilitation center.5           It also maintains that

from September 18, 2012 to October 4, 2012, a sixteen day period,

Appellant was unavailable because when Appellant returned from treatment,

the next available trial date was the October date. Nevertheless, the

Commonwealth does not rely on the trial court’s reasoning in any other

material    respect.    The    Commonwealth      submits   that   the   period   from
____________________________________________


5
 The Commonwealth and Appellant both agree that the period from July 30,
2012 until August 6, 2012, when Appellant turned himself in to police, is
excludable.




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November 2012 until February 2013 does not count against it because

Appellant did not object to those continuances.      Appellant, however, did

object to the November 30, 2012 continuance.        Thus, this portion of the

Commonwealth’s argument is belied by the record.

       The Commonwealth also contends that the period from April 24, 2013

to May 30, 2013 is excusable delay. It asserts that Appellant’s submission

of his own expert report on April 22, 2013, caused the Commonwealth to

continue the case in order to review that report. Lastly, the Commonwealth

points out that the trial court explicitly ruled the period from August 1, 2013

to August 22, 2013 excludable.6

       We agree with Appellant to the limited extent that the trial court’s

reliance on Solano, Williams, and Cohen stretched those decisions beyond

their actual holdings. Pointedly, Williams and Cohen are wholly inapposite.

Furthermore, the court erred in determining that, until October 24, 2012,

Appellant delayed the case due to his unavailability.         In Solano, the

Pennsylvania Supreme Court ruled that a thirty-five day delay between the

originally scheduled preliminary hearing and the date of the actual hearing


____________________________________________


6
  Appellant did not request the August 1, 2013 continuance, objected to the
continuance, and the continuance was given by the court so that the
Commonwealth could complete analyzing evidence from the vehicle involved
in this matter that the Commonwealth rather inexplicably only discovered on
July 22, 2013. Accordingly, we find the trial court’s legal conclusion to
attribute the time to Appellant erroneous.



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J-A04001-15


was attributable to the defendant. In doing so, it relied on Commonwealth

v. Manley, 469 A.2d 1042 (Pa. 1983).

     Manley held that where proceedings are continued because an

indigent defendant appears without counsel and does not waive counsel, the

delay is excludable time.   In Manley, the defendant appeared for trial on

May 30, 1978, without counsel.       Manley proffered that he had been

represented by private counsel at his preliminary hearing but could no

longer pay his counsel’s fees and was currently unrepresented.    The trial

court continued the case and instructed the defendant to apply for

representation from the public defender’s office. On September 1, 1978, the

public defender’s office entered its appearance.      The Supreme Court

concluded that the defendant was unavailable for the period from May 30,

1978 to August 31, 1978.

     The Manley Court found Commonwealth v. Millhouse, 368 A.2d

1273 (Pa. 1977), analogous and its rationale persuasive. In Millhouse, the

High Court ruled that if an actual delay in the case occurs because the

defendant “appears for proceedings in connection with his case without

defense counsel and such defendant is financially capable of retaining

counsel[,]” the delay is excludable time. Id. at 1276. There, the defendant

was unrepresented from February 6, 1974 until May 28, 1974. Despite the

defendant being unrepresented, the court conducted defendant’s preliminary

arraignment and no delay occurred.     However, from March 20, 1974 until


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J-A04001-15


May 28, 1974, the case was delayed due to the defendant’s failure to retain

counsel. The Millhouse Court, therefore, ruled those days to be excludable.

      Here, Appellant’s lack of an attorney of record did not cause the case

to be continued or delayed until September 17, 2012.        Millhouse plainly

stands for the proposition that the mere absence of counsel is not

automatically excludable time or the court would have held that the entire

February 1974 to May 1974 period attributable to the defendant. Similarly,

in both Solano and Manley, actual proceedings were continued due to the

lack of counsel. This case does not present that situation. Thus, Solano,

Manley, and Millhouse are not directly controlling. See also former Rule

600(C)(3)(a) (setting forth that time is attributable to a defendant if “delay

at any stage of the proceedings . . . . results from: (a) the unavailability of

the defendant or the defendant’s attorney”).

      In Commonwealth v. Anderson, 959 A.2d 1248 (Pa.Super. 2008),

this Court appeared to expand Manley by holding that the failure to appoint

counsel for seventy-seven days was excludable time.             However, the

Anderson Court concluded that the failure to appoint an attorney did result

in the proceedings being delayed.        The record here simply does not

demonstrate that Appellant’s change of attorneys delayed any proceedings.

See also Commonwealth v. Derrick, 469 A.2d 1111 (Pa.Super. 1983)

(trial rescheduled from October 26, 1981 until December 11, 1981, after the

defendant appeared at the earlier date without counsel); Commonwealth


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J-A04001-15


v. Bussey, 404 A.2d 1309 (Pa. 1979) (plurality) (period of delay from

original preliminary hearing to subsequent hearing due to defendant’s failure

to retain counsel was excludable).      Instantly, only two days of delay are

attributable to Appellant’s lack of counsel.       That is the period from

September 25, 2012 until September 27, 2012. Nonetheless, we do not find

that Appellant is entitled to Rule 600 relief.

      Appellant acknowledged that he was not ready for trial as of

September 17, 2012, because he wanted to seek rehabilitative treatment or

another attorney. Thus, the time from September 17, 2012 until November

30, 2012, when the Commonwealth continued the matter due to the

unavailability of its own witness, is attributable to Appellant.   This period

alone renders Appellant’s Rule 600 claim without merit.            Here, the

mechanical run date was July 30, 2013. Jury selection began on August 22,

2013, twenty-three days past the mechanical run date. Excluding the week

from July 30, 2012 to August 6, 2012, reduces the period to sixteen days.

The time between September 17, 2012 and November 30, 2012 is in excess

of sixteen days. Therefore, Appellant’s claim fails.

      The second issue Appellant levels on appeal is that the court erred in

purportedly sending to the jury a report by Dr. Eric Roslonski, marked as

Exhibit 73, to the jury.   Appellant avers that this report was not admitted

into evidence, contained an admission, and was improperly provided to the

jury during its deliberations.   The Commonwealth in its initial brief to this


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J-A04001-15


Court contended that the exhibit was not actually given to the jury.     This

factual dispute could not be discerned from the record.      Accordingly, we

remanded to the trial court for a hearing to determine whether the exhibit

was admitted into evidence and given to the jury.

      The trial court conducted such a hearing, but declared that it was

unable to determine whether it provided the exhibit to the jury.       At the

hearing in question, the court noted that it kept records of the exhibits

offered by both parties. The court placed on the record that it did not admit

Exhibit 73, Dr. Roslonski’s report. It also stated that it “highlighted on the

exhibits those which were not sent out to the jury.” N.T., 3/2/15 (Vol. I), at

6. Exhibit 73 was not highlighted, but the court set forth that “it was not

admitted so it should not have been among the exhibits.” Id. Nonetheless,

the court concluded by stating that it was unclear whether the exhibit was

mistakenly sent to the jury.

      The Commonwealth presented the testimony of two of the court

reporters in this matter.      The first court reporter had no independent

recollection of whether the exhibit was provided to the jury or if she pulled

that exhibit. However, she did indicate that generally an exhibit that is not

admitted into evidence is removed from the stack of exhibits that will be

submitted to the jury. Appellant’s appellate counsel also averred that one of

Appellant’s trial attorneys had indicated that he had no independent

recollection of whether the exhibit went to the jury.      The second court


                                    - 13 -
J-A04001-15


reporter, who was working at the time the Commonwealth offered Exhibit 73

into evidence, testified that her notes indicated that Exhibit 73 had been

admitted. Nevertheless, she also had no recollection of whether the exhibit

was given to the jury.

      At trial, the court initially precluded Dr. Roslonski from testifying, but

indicated that, if Appellant stated that he did not inform anyone that he had

been driving, the doctor would be permitted to rebut Appellant’s testimony.

After Appellant claimed that he did not tell anybody that he was the driver,

the Commonwealth presented Dr. Roslonski.            To refresh the doctor’s

recollection, the Commonwealth asked him to review a report he prepared

based on a medical consultation with Appellant. Dr. Roslonski then testified,

consistent with the report, that Appellant had told him that he had been

driving at the time of the accident.    Following the Commonwealth’s direct

examination of Dr. Roslonski, it moved for the admission of Exhibit 73. The

court responded, “I’ll defer ruling until cross.”     N.T., 8/29/13, at 212.

However, the court did not revisit the issue after the conclusion of Dr.

Roslonski’s testimony. Accordingly, the court never expressly admitted the

exhibit into evidence.

      The record of the trial proceedings also includes the following relevant

exchange.

      Court: The other thing, the exhibits I’m not going to send out
      are 25, an autopsy photo, 26, 27, 28, 29, autopsy photos.
      Those are ones I didn’t show initially. Also, the 71, the CD
      animation, Commonwealth’s CD animation; Commonwealth 72,

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J-A04001-15


      the defendant’s driving record; and 23,         Defendant’s   23,
      Defendant’s animation. I’m not going to be—

      Defense Counsel: Both the animations.

      Court: Any exception to that or any request that additional ones
      being kept out of their view? I don’t think there was anything in
      here, the defendant’s statement, anything else that we should
      keep out.

      Defense Counsel: No, Your Honor.

N.T., 8/30/13, at 216. Thereafter, the court indicated that Exhibit 31 would

not be sent to the jury and reiterated, “So, to recount, the ones that are

staying out are 25 through 29, 31, 71 and 72, and Defendant’s 23.” Id. at

219. Counsel did not object to Exhibit 73 purportedly being sent to the jury.

      Appellant argues that once he objected to the introduction of the

exhibit into evidence he was not required to renew his objection to the

exhibit being given to the jury. In support, he relies on Commonwealth v.

Canales, 311 A.2d 572 (Pa. 1973). Therein, a police officer took notes of

the defendant’s oral confession. The notes were not verbatim nor were they

signed by the defendant. The officer testified regarding the confession, and

used the notes to refresh his recollection.    The Commonwealth did not

initially offer the notes into evidence, although they were marked as an

exhibit.

      Nonetheless, the court admitted the notes into evidence over an

objection.   The notes were unequivocally sent with the jury during its

deliberations.   The Canales Court ruled that the officer was properly


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J-A04001-15


permitted to refresh his recollection with the notes but that the notes could

not be introduced into evidence. It continued that since the exhibit should

not have been admitted into evidence, it was improper for the jury to

receive the notes. The High Court added that the jury’s receipt of the notes

also violated then-Rule 1114, which prohibited transcripts from being

supplied to the jury.   The Canales Court reasoned that the notes “were

nothing more than his courtroom testimony reduced to writing—in effect, a

transcript of his trial testimony.” Canales, supra at 575. The Court also

expressly declined to adopt the Commonwealth’s waiver argument.        It set

forth that defense counsel did not have to object to the notes going to the

jury because counsel objected to their admission.

      Appellant continues that Exhibit 73 could not have been properly

introduced into evidence because Dr. Roslonski was available and able to

testify from his memory.    He further contends that showing the jury the

exhibit violated Pa.R.Crim.P. 646.     That rule provides in pertinent part,

“During deliberations, the jury shall not be permitted to have: (1) a

transcript of any trial testimony; (2) a copy of any written or otherwise

recorded confession by the defendant[.]”        Pa.R.Crim.P. 646(C)(1)-(2).

Lastly, Appellant asserts that, since the doctor’s notes contained an

admission, it cannot be harmless error for the court to have given the jury

the exhibit.




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J-A04001-15


      The Commonwealth responds that nothing in the record supports

Appellant’s contention that the jury actually viewed the exhibit. It highlights

that when the trial court and counsel were discussing which exhibits would

and would not go to the jury, trial counsel never objected to submission of

Exhibit 73.   The Commonwealth maintains that counsel did not object

because the exhibit was not among the documents that the court possessed

that were to be distributed to the jury.     It adds that counsel’s lack of an

objection also waives the contention on appeal.

      In addition, the Commonwealth submits that the exhibit did not

contain a confession, but only an inculpatory statement. According to it, an

inculpatory statement that does not acknowledge all the elements of the

crime is distinguishable from a confession and, thus, there would have been

no error in submitting the exhibit to the jury.    Finally, the Commonwealth

contends that even if the jury did view the evidence and the court

improperly provided it to the jury, any error was harmless.      It points out

that Officer Gregory and Dr. Perry both testified that Appellant had told

them that he was the driver.

      We find that the record does not support Appellant’s premise, i.e., that

the court actually gave the jury the exhibit.     There is no evidence in the

record that Exhibit 73 was admitted into evidence or given to the jury.

Appellant’s argument hinges on the court’s silence regarding Exhibit 73

when discussing which admitted exhibits would go out with the jury. Trial


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counsel specifically stated on the record that he had no objection to the

documents that were given to the jury.            Thus, even if the exhibit were

somehow included among the admitted exhibits provided to the jury, the

issue is waived.

         In this respect, the instant case is readily distinguishable from

Canales. Here, the exhibit was not explicitly admitted into evidence. The

trial court expressly stated it would defer ruling on admission of the exhibit,

but never returned to the question.              Therefore, the exhibit was not

improperly admitted into evidence. Moreover, where, as here, trial counsel

was explicitly asked if he objected to the submission of certain admitted

exhibits and he did not, counsel’s failure to object does waive the matter.

Indeed, a timely objection is needed precisely to avoid the situation where it

is uncertain whether a piece of evidence is being turned over to the jury.

Had counsel objected, we would be certain that the exhibit was being given

to the jury. Absent the objection, there is no record support that the exhibit

was provided to the jury and it is almost certain that Exhibit 73 was not

included among the documents being discussed.             Since Appellant has not

established that the exhibit was actually viewed by the jury and he did not

object when asked about the exhibits that were given to the jury, his issue

fails.

         The final claim Appellant levels on appeal is that the trial court erred in

declining to exclude Corporal Carrick’s testimony that was inconsistent with


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his expert report. Corporal Carrick had prepared an expert report that was

admitted into evidence.        In that report, he expressed his opinion that the

point of impact between the truck and the utility pole was the right side roof

of the vehicle. During direct examination, he did not testify that his opinion

had changed. On cross-examination, Corporal Carrick again acknowledged

that his report set forth that the right side roof of the truck impacted the

utility pole; however, he also testified for the first time that his opinion had

changed.     At that time, he did not detail his change in opinion nor did

defense counsel explore this change in detail.7 Corporal Carrick also had not

issued a supplemental report.


____________________________________________


7
 The entire relevant exchange between trial counsel and Corporal Carrick
was as follows.

       Defense counsel: . . . . I think you indicated in your conclusions
       on page nine of your report that it appears the pole was struck
       by the right side roof area of the truck?

       Corporal Carrick: Correct.

       Defense counsel: And is that—is that your opinion today?

       Corporal Carrick: Today it is not.

       Defense counsel: It’s not?

       Corporal Carrick: Correct.

       Defense counsel: Is there any—did you file a supplemental? Did
       you reach another conclusion?

(Footnote Continued Next Page)


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      The trial court, not counsel, then undertook an extensive and detailed

questioning of Corporal Carrick with respect to his new opinion after the

Commonwealth finished its redirect examination.      At the conclusion of the

court’s questioning, Appellant asked that the court exclude the testimony

since the Commonwealth did not disclose this latter opinion.               The

Commonwealth acknowledged being aware of Corporal Carrick’s change of

opinion, but never disclosed this fact to defense counsel. See N.T., 8/28/13,

at 117-118.      Appellant maintains that the Commonwealth committed a

discovery violation and that this violation precluded him from adequately

preparing to examine Corporal Carrick.



                       _______________________
(Footnote Continued)

      Corporal Carick: I did not. Nothing was on—written down, no,
      sir.

      Defense counsel: So you didn’t file a supplemental report to
      your initial report?

      Corporal Carrick: Correct.

      Defense counsel: But in the conclusion where you say that the
      pole was struck by the right side roof area, that’s no longer your
      conclusion?

      Corporal Carrick: Correct. That was based on what I had at the
      scene and what I thought at the time and the dynamics of the
      vehicle.

N.T., 8/28/13, at 85-86. Defense counsel did later briefly cross-examine
Corporal Carrick about whether he looked for woodchips on the roof of the
truck to determine the point of impact. Id. at 104-105.



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      Unlike civil cases, there are no specific procedural rules governing

expert reports in criminal cases aside from Pa.R.Crim.P. 573, which relates

to discovery. The rule requires the Commonwealth to turn over the results

of expert opinions in its possession or control. Specifically, Pa.R.Crim.P.

573(B)(1)(e) reads:

      (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.

            ....

      (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;

Additionally, Pa.R.Crim.P. 573(D) provides that both parties have a

continuing duty to disclose evidence that is requested prior to trial that is

subject to disclosure.   In the instant case, Appellant requested discovery,

including any expert information and reports. The Commonwealth provided

discovery materials that included Corporal Carrick’s report.          However, it

never disclosed that Corporal Carrick had altered his opinion.

      Although there are no rules of procedure in criminal cases precisely

governing   expert    reports,   it   cannot   be   asserted   that   either   the

Commonwealth or a defendant has carte blanche to allow an expert to

testify beyond the information contained in his or her report.           To hold


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otherwise would eviscerate the requirement that reports be disclosed.       In

Commonwealth v. Stith, 644 A.2d 193 (Pa.Super. 1994), this Court

discussed the civil rules in the context of a criminal case.       There, the

appellant conceded that no criminal case law discussed the proper remedy

when “the Commonwealth introduces expert testimony exceeding the scope

of an expert report.” Stith, supra at 197.

      Stith relied on Pa.R.C.P. 4003.5(c), and civil jurisprudence governing

expert reports to argue that an expert is not permitted to testify beyond the

scope of his report. Rule 4003.5(c) states in pertinent part,

       (c) To the extent that the facts known or opinions held by an
      expert have been developed in discovery proceedings ... his
      direct testimony at trial may not be inconsistent with or go
      beyond the fair scope of his testimony in the discovery
      proceedings as set forth in his ... separate report.... However, he
      shall not be prevented from testifying as to facts or opinions on
      matters on which he has not been interrogated in the discovery
      proceedings.

Pa.R.C.P. 4003.5(c).    In Stith, however, this Court concluded that the

expert did not testify beyond the fair scope of his report. Stith, supra at

198. Instantly, there is no dispute that Corporal Carrick testified differently

and beyond the scope of his report. Further, in light of the Commonwealth’s

repeated acknowledgment that it knew Corporal Carrick no longer held the

opinion stated in his report regarding the point of impact, we agree a

discovery violation occurred.

      Pursuant to Pa.R.Crim.P. 573(E), the trial court has a variety of

options at its disposal where a discovery violation exists. “[T]he court may

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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.”      Pa.R.Crim.P.    573(E);

Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa.Super. 2011).

      Here, the court not only permitted but elicited the testimony in

question.     It then held that, because the initial disclosure that Corporal

Carrick no longer held the view that the roof of the truck was the point of

impact on the utility pole occurred on cross-examination, his later extensive

testimony was permissible.       In doing so, it relied on Commonwealth v.

Harris, 703 A.2d 441 (Pa. 1997).

      In Harris, the defendant was found guilty of murder and other crimes

after he shot and killed Owen Edwards. Edwards was armed at the time of

the killing with a .380 caliber handgun.        A police expert, Officer Alan

Jackson, testified that the victim did not fire the gun on that date because

there was lint present in the barrel of the gun.       A written report by a

different officer also indicated that certain bullet specimens were unsuitable

for comparison.     Officer Jackson had testified in another trial consistently

with that report. However, at Harris’ trial, he opined on cross-examination

that he had been able to compare one of the specimens and it had not been

fired from the victim’s weapon.




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      Harris argued that the officer’s testimony was contrary to that in his

written report and that the Commonwealth violated discovery and its duty to

disclose this information.   The Harris Court determined that no discovery

violation   occurred    because   the    officer’s    testimony   came     on    cross-

examination and the Commonwealth did not ask the officer if he had

changed his opinion. The Court expressly set forth that “the record does not

establish that the evidence was in the ‘possession and control of the

attorney for the Commonwealth[.]’” Id. at 448. It also added that Harris

could not establish prejudice because he did not adopt a self-defense theory

based on the victim having fired his gun.

      The Commonwealth echoes the trial court’s rationale and relies on

Harris. In addition, it argues that Appellant’s defense hinged on the identity

of the driver and that Corporal Carrick’s report and testimony assumed

Appellant   was   the   driver.    It    highlights    that   Officer   Gregory,    Mr.

Sullenberger, Kevin Roles, Dr. Perry, and Dr. Roslonski all testified regarding

Appellant being the driver. The Commonwealth adds that Appellant’s own

expert testified that his own analysis of who was driving was not altered by

Corporal Carrick’s testimony that differed from his report.                     Indeed,

Appellant’s expert, Mr. Laino, dismissed both Corporal Carrick’s report and

testimony because it was not based on an independent analysis.

      A discovery violation and testimony exceeding the scope of the

expert’s report, as a result of court questioning, do not automatically


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command a new trial. Appellant still must establish that the introduction of

the expert testimony caused him prejudice to the degree that it affected his

trial   strategy   or   likely   affected   the    outcome     of   the   proceedings.

Commonwealth            v.   Hood,     872        A.2d   175    (Pa.Super.     2005);

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

also Commonwealth v. Henry, 706 A.2d 313 (Pa. 1997) (assuming

arguendo that expert testimony exceeded the scope of expert’s report did

not result in a successful ineffective assistance of counsel claim where

counsel failed to object because there was overwhelming evidence of guilt).

        The trial court and Commonwealth’s reliance on Harris is misplaced

because the Commonwealth admitted it was aware that Corporal Carrick had

changed his opinion and the testimony objected to was elicited by the trial

court and not by defense counsel in an attempt to discredit the officer.

However, we agree that Appellant cannot establish prejudice.

        Instantly, Appellant’s own expert reviewed Corporal Carrick’s written

report and heard his different in-court testimony. He opined that neither of

the conclusions reached by Corporal Carrick affected his own expert opinion

that Appellant’s son was driving. Furthermore, as it relates to preparation,

Corporal Carrick’s testimony in response to the court’s questioning was

consistent with the conclusion reached by Mr. Sullenberger. Thus, defense

counsel was already prepared to rebut that testimony. We acknowledge that

based on Corporal Carrick’s change in stance, evidence was introduced


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buttressing Mr. Sullenberger’s testimony as to the point of impact.

However, in light of Appellant’s own admissions to two doctors and Officer

Gregory, as well as Kevin Roles’ testimony, we cannot agree that jury would

have determined that Appellant was not the driver.

     For the aforementioned reasons, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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