J-S57026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

TYREEK JORDAN

                            Appellee                  No. 175 EDA 2014


                Appeal from the Order Dated December 13, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010031-2013


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 10, 2014

       The Commonwealth appeals from the December 13, 2013 order

prohibiting it from introducing certain evidence at trial as a discovery

sanction. After careful review, we affirm.1

       The trial court summarized the relevant factual and procedural history

of this case as follows.

                    On July 20, 2012, [Appellee] was arrested and
              charged with one (1) count [of] Manufacture,
              Delivery, or Possession with Intent to Manufacture or
              Deliver (35 [P.S.] § 780-113(a)(30)); one count [of]
              Intentional Possession [of a] Controlled Substance
              By Person Not Registered (35 [P.S.] § 780-
              113(a)(16)); and one count [of] Use or Possession of
____________________________________________
1
   The Commonwealth has averred, pursuant to Pa.R.A.P. 311(d), that the
trial court’s order would terminate or substantially handicap its prosecution.
Therefore, we have jurisdiction to address the Commonwealth’s interlocutory
appeal.
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              Drug Paraphernalia (35 [P.S.] § 780-113(a)(32)).
              All charges were held for court at a [p]reliminary
              [h]earing on August 6, 2013. On September 26,
              2013, the case was continued because discovery was
              incomplete; specifically, the Commonwealth failed to
              provide a copy of the relevant search warrant. The
              Commonwealth still had not provided the warrant as
              of December 13, 2013. On that date, th[e trial
              c]ourt, in light of the Commonwealth’s failure to pass
              the warrant, ordered all evidence suppressed.

Trial   Court   Opinion,     3/18/14,     at   1.   On   January   13,   2014,   the

Commonwealth filed a timely notice of appeal.2

        On appeal, the Commonwealth raises one issue for our review.

              [1.] Did the [trial] court erred [sic] in suppressing
              all of the evidence against [Appellee] where no
              suppression motion was filed, no suppression
              hearing was held, and no basis for suppressing the
              evidence appears on the record?

Commonwealth’s Brief at 4.

        We begin by noting our well-settled standard of review.          This Court

has noted that “decisions involving discovery in criminal cases lie within the

discretion of the trial court.” Commonwealth v. Smith, 955 A.2d 391, 394
____________________________________________
2
  We observe that the 30th day fell on Sunday, January 12, 2014. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.”   1 Pa.C.S.A. § 1908.        Therefore, the 30 th day for the
Commonwealth to file a timely notice of appeal was on Monday, January 13,
2014. As a result, we deem the Commonwealth’s appeal timely filed.

      Contemporaneously with its notice of appeal, the Commonwealth filed
a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), even though the trial
court did not order it to do so. The trial court filed its Rule 1925(a) opinion
on March 18, 2014.



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(Pa. Super. 2008) (citation omitted).      “Generally, on review of an order

granting or denying a discovery request, an appellate court applies an abuse

of discretion standard.”   Commonwealth v. Mendez, 74 A.3d 256, 260

(Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2014).

      The Commonwealth characterizes the trial court’s order as one of

suppressing illegally obtained evidence.      Commonwealth’s Brief at 8.   The

Commonwealth’s one paragraph of argument in its opening brief states that

the trial court erred in “suppressing evidence” because Appellee did not file a

suppression motion, the trial court did not have a suppression hearing, and

“the [trial] court made no findings of fact and conclusions of law.”

Commonwealth’s Brief at 8, citing Commonwealth v. Micklos, 672 A.2d

796, 804 (Pa. Super. 1996) (en banc) (concerning suppression of evidence

obtained in violation of defendant’s Fourth Amendment rights), appeal

denied, 686 A.2d 1309 (Pa. 1996); see also Pa.R.Crim.P. 581(A) (stating,

“[t]he defendant’s attorney, or the defendant if unrepresented, may make a

motion to the court to suppress any evidence alleged to have been obtained

in violation of the defendant’s rights[]”).    Appellee counters that the trial

court’s order was a discovery sanction and the correct standard of review is

whether the trial court abused its discretion in ordering a remedy.

Appellee’s Brief at 9.     In its opinion, the trial court agrees with the

Commonwealth that it was required to hold a traditional suppression hearing




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before entering its order and erred by failing to do so. Trial Court Opinion,

3/18/14, at 2.

     The record reveals the circumstances culminating in the trial court’s

order. On September 26, 2013, both parties appeared before the trial court

for a status hearing.   During this hearing, without further detail, Appellee

told the trial court “the Commonwealth has not been diligent. I do not have

complete discovery.” N.T., 9/26/13, at 3. The trial court ordered the next

status hearing to be November 14, 2013. Id. at 4.

     At the November 14, 2013 status hearing, the following exchange took

place between the trial court and defense counsel.

           [Defense Counsel]:        … Your Honor, we are here at
           the last listing -- this is a second listing. This is a
           case where the police came in with a warrant. What
           I asked for in discovery was that -- they were
           looking for my client’s brother, and so I need
           the information for the client’s brother to see if
           that warrant was valid to go into that house. I
           haven’t gotten any of it. That’s what we talked
           about at the last listing.

           [Trial Court]:     How many times has this case
           been here?

           [Defense Counsel]:        This is the second time back.
           I think it’s the second time back. And I sent [the
           Commonwealth] an email reminding [it] about it, but
           I don’t know if [it has] the discovery or not.

                                      …

           [Trial Court]:   But [the      Commonwealth]     didn’t
           pass information on, so --




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              [Defense Counsel]:     It’s up to the Court. It’s a
              big offer. I mean, I think the offer is five to ten. I
              don’t know that my client is going to take that.

              [Trial Court]:       Right.

              [Defense Counsel]:     I need that      discovery   to
              know whether it’s a motion or a plea.

              [Trial Court]:       Okay.

                                               …

              [Trial Court]:  And I’m going to order -- I’m
              going to suppress the evidence in the case,
              anything that was seized in the house, if [the
              Commonwealth      doesn’t]   turn  over    the
              discovery to you.

                     Status this. Okay. 12/13.

              [Court Clerk]:       Number?

              [Trial Court]: Number Nine; on bail; 12/13. If
              discovery is not passed, all evidence gained
              from the entry will be seized [sic]. Discovery
              must be turned over by 12/13.

N.T., 11/14/13, at 3-5 (emphases added).           Despite being informed on

September 26 that the next status hearing would be on November 14, the

Commonwealth failed to appear and the record does not explain its absence.

       As ordered by the trial court, the next status hearing was on

December 13, 2013, where both parties appeared before the trial court.3


____________________________________________
3
  We note that the December 13, 2013 transcript is not contained within the
certified record. As the appellant in this case, it is the Commonwealth’s sole
responsibility to ensure that the certified record contains all materials
(Footnote Continued Next Page)


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             [Defense Counsel]:        Your Honor, if the court
             pleases, at the last listing I let the Court know that
             while I had the regular discovery I had asked the
             [Commonwealth] for additional discovery.

                   The allegations [sic] that they hit the house
             with a warrant, looking for my client’s brother, they
             found a [sic] some gram inside the house. I asked
             the [Commonwealth] to provide me with the warrant
             and all of the information why they thought they
             could find his brother at [Appellee’s] house. The
             Court ordered that if the [Commonwealth] did
             not provide it to me before today, the court
             would not allow any information in, the matter
             would be discharged, and I don’t have it.

             [Trial Court]:         Commonwealth, any information?

             [Commonwealth]:        I don’t have any information
             on the arrest warrant that he is asking for regarding
             the brother.

             [Trial Court]:      All of the evidence is suppressed.
             Listed for trial here, Friday, January 17th, 2014.

             [Defense Counsel]:            Okay,   Judge.   May   I   be
             excused?

             [Trial Court]:         Yes.

                       All of the evidence is suppressed.


                       _______________________
(Footnote Continued)

necessary for this Court to conduct meaningful appellate review.
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (stating,
“[i]t is the responsibility of an appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty[]”) (citation omitted),
appeal denied, 76 A.3d 538 (Pa. 2013). However, since a copy of the same
transcript is in the Commonwealth’s reproduced record, we decline to find
waiver on this basis.



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             [Commonwealth]:        Just for the record, is it your
             position that we would not be able to even call a
             witness or present anything? Are you setting it for a
             trial date?

             [Trial Court]:    Yes.

             [Commonwealth]:          What would be the purpose
             of the trial so I can mark the file --

             [Trial Court]:    Well,     I   had  problems   in
             Superior Court in discharging cases for the
             Commonwealth failing to provide discovery. I
             have been approved that I can suppress the
             evidence, but I still must allow the Commonwealth
             the opportunity to go to trial. I cannot take that
             away from the Commonwealth. So I must give you
             the opportunity to go to trial.

             [Commonwealth]:        Will it be a 30 day appeal
             date on the suppression of the evidence?

             [Trial Court]:    Excuse me?

             [Commonwealth]:        Can we have a 30 day appeal
             date on the suppression of the evidence?

             [Trial Court]:    Yes. I kicked it out to -- I gave
             you 34 days. I gave you four extra days to take
             your appeal to [S]uperior [C]ourt that I have
             suppressed the evidence because I [sic] order
             have [sic] been violated in that defense
             counsel was not given the discovery which I
             ordered two months ago, therefore, I am
             suppressing that evidence. I have not denied you
             the right to go to trial. And I have given you a trial
             date.

N.T., 12/13/13, at 3-5 (emphases added).

     After     careful    review,     we    conclude   the   Commonwealth’s

characterization of the trial court’s order is belied by the record.     As


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highlighted   above,   the   record    is   replete   with   references   to   the

Commonwealth’s failure to provide complete discovery to Appellee.              See

N.T., 9/26/13, at 3; N.T., 11/14/13, at 3, 4-5; N.T., 12/13/13, at 3-5. At

the December 13, 2013 status hearing, the Commonwealth even asked for

clarification of the trial court’s decision, and the trial court again stated it

“suppressed the evidence because I [sic] order have [sic] been violated in

that defense counsel was not given the discovery which I ordered two

months ago.” N.T., 12/13/13, at 5. In our view, it is abundantly clear that

the trial court’s order is a discovery sanction.

      Although the trial court used the word “suppress” at the hearings, it

does not alter the characterization of the trial court’s order, as this is a

discovery sanction available to the trial court.       See Pa.R.Crim.P. 573(E)

(stating, “[i]f 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 prohibit such party from introducing evidence not

disclosed … []”) (emphasis added); Commonwealth v. Crossley, 653 A.2d

1288, 1291 (Pa. Super. 1995) (characterizing a trial court’s order decision as

when a witness’s “statement was presented by the Commonwealth less than

24 hours before trial, a violation of the court’s order directing production of

all information by 10:00 a.m. of [the day before trial] had occurred and

warranted     suppression     of   the      statement[]”)    (emphasis    added);

Commonwealth v. Melendez, 474 A.2d 617, 623 (Pa. Super. 1984)


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(stating, “[w]e do not condone violation of the discovery rules … [h]owever,

since appellant merely asked for suppression of the statement, and since

the prosecutor did not pursue the matter nor admit the statement into

evidence … we hesitate to find an abuse of discretion[]”) (emphasis added).

Based on these considerations, we reject the Commonwealth’s argument

that the trial court was required to have before it a motion to suppress

evidence, to conduct a suppression hearing pursuant to Rule 581(E), and to

make findings of fact and conclusions of law pursuant to Rule 581(I).

      In its reply brief, the Commonwealth argues that if this Court

characterizes the trial court’s order as a discovery sanction, it was

nevertheless an abuse of discretion, as “there was no blatant misconduct[]”

in this case. Commonwealth’s Reply Brief at 5. Before we may address the

merits of this argument, we must first ascertain whether it has been

preserved for our review.

      Pennsylvania Rule of Appellate Procedure 1925(b) by its text requires

that statements “identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”

Pa.R.A.P. 1925(b)(4)(ii).    Any issues not raised in accordance with Rule

1925(b)(4) will be deemed waived.       Id. at 1925(b)(4)(vii).   Our Supreme

Court has held that Rule 1925 is a bright-line rule. Commonwealth v. Hill,

16 A.3d 484, 494 (Pa. 2011). Furthermore, this Court has explained that

even if the trial court does not order that a Rule 1925(b) statement be filed,


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if the appellant chooses to file one, any issue not raised therein is deemed

waived. Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005)

(concluding, “[i]f we were to find that because he was not ordered to file a

1925(b) statement, he has not waived the issues he neglected to raise in it,

we would, in effect, be allowing appellant to circumvent the requirements of

the Rule[]”); accord Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa.

Super. 2008) (finding one of the Commonwealth’s issues on appeal waived

for not being raised in its Rule 1925(b) statement and declining to

“encourage ‘sand bagging’ by counsel if they are allowed to quickly file a

Rule 1925(b) statement and then claim that nothing is waived because the

Rule 1925(b) statement was not in response to a formal request” from the

trial court); but see Commonwealth v. Antidormi, 84 A.3d 736, 745 n.7

(Pa. Super. 2014) (concluding, without citation to our prior cases, that

“[b]ecause the trial court did not order the filing of a Rule 1925(b)

statement, we will not conduct a waiver inquiry … [as t]he requirements of

Rule 1925(b) are not invoked in cases where there is no trial court order

directing an appellant to file a Rule 1925(b) statement[]”), appeal denied,

95 A.3d 275 (Pa. 2014).

      In the case sub judice, the Commonwealth’s Rule 1925(b) statement

raised the following single issue.

            Did the [trial] court err in suppressing all evidence
            where the docket fails to reflect that a suppression
            motion was filed, no suppression hearing was held,
            and no basis for suppression appears on the record?

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Commonwealth’s Rule 1925(b) Statement, 1/13/14, at 1.            As we have

explained above, the record plainly reveals the trial court’s decision was a

discovery sanction.     See N.T., 9/26/13, at 3; N.T., 11/14/13, at 3, 4-5;

N.T., 12/13/13, at 3-5.      Therefore, Appellee was not required to file a

motion to suppress under Rule 581(A), the trial court was not required to

conduct a suppression hearing under Rule 581(E), nor was the trial court

required to make findings of fact and conclusions of law pursuant to Rule

581(I). The Commonwealth’s argument in its reply brief is beyond the scope

of the single issue contained in its Rule 1925(b) statement. As a result, this

line of argument is waived.     See Hill, supra; Nobles, supra; Snyder,

supra.      We therefore express no opinion as to whether this discovery

sanction constituted an abuse of discretion.

      Based on the foregoing, we conclude the Commonwealth’s argument in

its opening brief is devoid of merit, and its argument in its reply brief is

waived as beyond the scope of the Commonwealth’s Rule 1925(b)

statement.     Accordingly, the trial court’s December 13, 2013 order is

affirmed.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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