J-S40016-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

LEROY MALDONODO

                        Appellee                    No. 1191 EDA 2015


              Appeal from the Order Entered March 25, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003453-2014


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                   FILED JULY 14, 2016

      I respectfully dissent from the learned majority’s affirmance of the

discovery sanction levied by the trial court. Due to the confusion surrounding

the translation of the tapes in question, which the majority acknowledges in

its memorandum, I agree with the Commonwealth that the imposed sanction

of preclusion of the tapes was disproportionate to its offensive conduct.

Accordingly, I would reverse.

      This Court reviews “a trial court’s order awarding sanctions under an

abuse of discretion standard.” Commonwealth v. Jordan, 125 A.3d 55, 65

(Pa.Super. 2015) (en banc) (citation omitted). Nevertheless, we must recall

that “[w]hile the trial court is accorded discretion to sanction a party who

violates an order, there are limits upon the sanctions that a trial court can
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impose.” Id. Critically, this Court has held that the appropriate sanction in a

criminal case for a violation of discovery rules by the Commonwealth is to

deny the prosecution “the fruits of its transgressions.” Id. (quoting In re

York County Dist. Attorney's Office, 15 A.3d 70, 73 (Pa.Super. 2010)).

      In the present case, the Commonwealth’s transgression was failing to

abide by its voluntary proposal to “have [the] tapes officially transcribed by

a certified translator, not from the court.” N.T. Motion, 2/10/15, at 21.

There is no doubt, and Appellee does not contest, that the Commonwealth

did, in fact, provide Appellee with all original recordings of the prison calls,

which were in Spanish. Appellee obviously speaks the language and knew

what the tapes said.      While the Commonwealth agreed to provide the

English transaction, the Commonwealth made attempts perform that action.

Before the trial court heard any arguments regarding the recordings, the

assistant district attorney gave Appellee a partial transcription of the two

relevant phone calls, i.e., the ones that included statements by Appellee

indicating his involvement in the crimes charged against him.

      Following the prosecutor’s voluntary proposal to have the tapes

officially transcribed, the trial court granted a continuance. In addition, the

trial court ordered the Commonwealth to have prison calls transcribed in

English, and handed over to Appellee at least three weeks before trial. The

trial court reports that its order pertained to all the prison tapes involving




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Appellee while the Commonwealth counters that it offered to transcribe only

the two tapes it intended to use at trial.

      The majority agrees with the Commonwealth that it was only required

to transcribe the two inculpatory tapes and characterizes the offer as a

binding agreement. That conclusion furthers the confusion involved in this

case. While it appears as if the Commonwealth was under the impression

that it was only ordered to provide Appellee with transcripts of the two

phone calls it wished to use, the trial court maintained its order pertained to

all 466 phone calls. See Appellant’s Brief at 11-12; See also Trial Court

Opinion, 9/17/15, at 4, 8-9.

      In affirming, the majority reasons that the record does not support the

trial court’s assertion, and rules the Commonwealth was only mandated to

provide Appellee with transcriptions of two phone calls. Thus, even though

the majority acknowledges the confusion created by the trial court’s order, it

still finds the sanction which precluded the use of the tapes to be a proper

exercise of the trial court’s discretion. This affirmance simply does not

appropriately account for the facts of the case.

      Following the trial court’s order, the assistant district attorney made

efforts to transcribe the tapes but was unable to obtain an official transcriber

since the district attorney’s office refused to pay the fee. Thereafter, the

assistant district attorney enlisted the help of two Spanish speaking

detectives to translate and transcribe the tapes.

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      At the second hearing for discovery sanctions, the prosecutor informed

the trial court of the situation and offered to provide Appellee with the

transcriptions once they were finished. Therefore, the record shows that the

attorney in question did not maliciously withhold evidence from Appellee. In

fact, the Commonwealth made reasonable attempts to provide Appellee with

the transcripts of his own prison phone conversations, which the law does

not strictly require. See Commonwealth v. Robinson, 122 A.3d 367, 373-

4 (Pa.Super 2015) (declaring Pa.R.Crim.P. 573 does not positively require

the Commonwealth to provide transcripts when the evidence has been

disclosed and made available to the defense). The de minimus nature of the

Commonwealth’s infraction is compounded by the fact that Appellee speaks

Spanish and could readily translate for himself all of the recordings.

      The majority analyzes only one case to support its conclusions. In

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

held that the trial court’s preclusion of grand jury testimony from thirty-four

witnesses was too severe because the Commonwealth “substantially

complied” with the trial court’s discovery order to supply transcripts and

preclusion would “substantially hamper the prosecution.” Id. at 503. In that

case, the Commonwealth conformed to the order, but did so four days late.

Id. at 502. The majority is correct in noting that in the case sub judice, the

Commonwealth was not merely late in compliance, but it did not fulfill its




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offer to have the tapes officially transcribed. Majority Memorandum at 12.

However, reliance upon Hemingway alone is questionable.

      To bolster its affirmance of the trial court’s preclusion order, the

majority relies on a caveat from Hemingway, stating a trial court may still,

“preclude evidence or testimony when a binding agreement is reached

between the parties, the parties have actual knowledge of the sanction that

is to be employed for failing to abide by the terms of the agreement, and

one or more parties abjectly refuse to comply.” Id. (quoting Hemingway,

supra at 503).

      In my view, reliance on this language is misguided.          First, the

assertion that the parties reached a binding agreement is tenuous at best.

“A binding agreement exists where all parties come to a meeting of the

minds on all essential terms of the agreement.” Mastroni-Mucker v.

Allstate Ins. Co., 976 A.2d 510, 518 (Pa.Super. 2007). Herein, there was

simply an offer to have an official translator; Appellee never requested that

action.   Moreover, the Commonwealth was not, as noted, mandated to

undertake that action.

      Next, as discussed supra, the record does not support the conclusion

that the Commonwealth “abjectly” refused to comply with the trial court’s

order. The Commonwealth made multiple attempts to transcribe the tapes,

all the while subject to an ambiguous discovery order. Perhaps if the

Commonwealth knew exactly what the trial court expected of it, compliance

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would have been obtainable. Accordingly, this case does not present us with

a situation contemplated in our caveat in Hemingway.

      Furthermore, this Court has avowed, “[a] continuance is appropriate

where the undisclosed statement or other evidence is admissible and the

defendant's only prejudice is surprise.” Commonwealth v. Smith, 955 A.2d

391, 395 (Pa.Super. 2008) (citation omitted). Indeed, a continuance is an

adequate remedy in the majority of cases. Id. (citation omitted).     Herein,

we are not presented with a situation where the Commonwealth has failed to

disclose material evidence. The Commonwealth disclosed the recordings to

Appellee, and Appellee had the opportunity to review his prison phone calls

and prepare a defense since he understood their contents.

      Consequently, Appellee has presented no proof of prejudice, through

surprise or otherwise, and the majority fails to address this fact. The only

cognizable prejudice created in this matter stems from the Commonwealth’s

loss of incriminating statements made by Appellee. Such evidence obviously

is invaluable at trial.   Under these circumstances, it was unreasonable for

the trial court to preclude the admission of the inculpatory tapes given their

probative value.

      In conclusion, a careful review of the record exposes that the trial

court’s preclusion of the tapes in question was a clear abuse of discretion.

Not only did the trial court issue a confusing order, but it also levied a

punishment which did not fit the crime. The Commonwealth’s loss of

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inculpatory phone recordings, when it made reasonable efforts to transcribe

the recordings out of its own good will, epitomized far more than a denial of

the fruits of its transgressions. Hence, I dissent.




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