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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                              FILED JULY 14, 2016

       The Commonwealth appeals from the March 25, 2015 order granting

the motion for discovery sanctions filed by Appellee, Leroy Maldonodo. After

careful review, we affirm.

       We summarize the relevant factual and procedural history of this case

as follows.     On April 2, 2014, the Commonwealth filed an information,

charging Appellee with two counts each of robbery, theft by unlawful taking,

possession of an instrument of a crime, terroristic threats, and simple

assault.1 As part of discovery, Appellee sought disclosure of, inter alia, any

electronic surveillance and transcripts thereof.   Appellee’s First Motion for

Discovery Sanctions, 2/8/15, Exhibit 1, at 2. On February 8, 2015, Appellee
____________________________________________
1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 907(a), 2706(a)(1), and 2701(a),
respectively.
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filed   a   motion   for   discovery   sanctions,   specifically   alleging   the

Commonwealth failed to timely turn over 466 prison phone call recordings of

Appellee, which were in Spanish.       On February 10, 2015, after hearing

argument, the trial court denied Appellee’s motion for sanctions, but granted

a continuance to permit the Commonwealth the opportunity to translate the

prison tapes to English. Relevant to this appeal, the Commonwealth told the

trial court that “in the meantime, [it would] have these tapes officially

transcribed by a certified translator, not from the court, and provide a copy

to [defense c]ounsel[.]” N.T., 2/10/15, at 21. Based on this promise, the

trial court stated the translated transcripts “have to be passed [to defense

counsel] three weeks prior to trial because [it] want[ed] to make sure there

[was] enough time for the transcription to be completed and done right so

that [defense counsel could] review it.” Id. at 22. The trial court set a new

listing date of April 7, 2015. Id. at 23. The docket contains an entry listing

an “Order Granting Motion for Continuance,” which stated, relevant to this

appeal, that the “Commonwealth [was] to get prison calls transcribed and

passed to [d]efense 3 weeks prior to trial.” Trial Court Docket at 6.

        On March 20, 2015, Appellee filed another motion for discovery

sanctions, alleging that the Commonwealth had not complied with the trial

court’s previous order. On March 25, 2015, the trial court heard argument

on Appellee’s motion, and entered an order granting the motion and

precluding the Commonwealth from introducing the prison tapes into


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evidence at trial. The Commonwealth filed a motion for reconsideration on

April 1, 2015, which the trial court denied on April 10, 2015. On April 24,

2015, the Commonwealth filed a timely notice of appeal.2

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

              Did the trial [court] abuse its discretion in
              suppressing    audio  recordings    of   [Appellee]’s
              telephone calls made in prison unless the
              Commonwealth also translated the calls from
              Spanish to English and created translated transcripts
              of the recorded statements?

Commonwealth Brief at 4.

       The Commonwealth argues that the trial court erred in several

respects.     Succinctly, the Commonwealth avers that the trial court’s

February 10, 2015 order does not direct it to transcribe all 466 tapes, rather,

it directs the transcription of only two of them. Commonwealth’s Brief at 11.

The Commonwealth also claims that its representations resulting in said

order do not constitute a binding agreement.        Id. at 12.   Moreover, the

Commonwealth states that even if such an agreement did exist, it

substantially complied when it turned over partial transcriptions by police

detectives.    Id. at 11.      Finally, the Commonwealth argues that the trial
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2
  The Commonwealth certified in its notice of appeal that the trial court’s
order would substantially handicap its prosecution pursuant to Pennsylvania
Rule of Appellate Procedure 311(d). Concurrently with its notice of appeal,
the Commonwealth filed a concise statement of errors complained of on
appeal pursuant to Rule 1925(b), although the trial court had not ordered it
to do so. The trial court issued its Rule 1925(a) opinion on September 17,
2015.



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court’s sanction of exclusion was disproportionate, and that an additional

continuance was warranted. Id. at 16-17.

       At the outset, we note, “we review 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).

Pennsylvania Rule of Criminal Procedure 573(B)(1)(g) requires that the

Commonwealth turn over to the defense, upon its request “the transcripts

and recordings of any electronic surveillance, and the authority by which the

said transcripts and recordings were obtained.” Pa.R.Crim.P. 573(B)(1)(g). 3

Furthermore, Rule 573(E) permits the trial court to grant a motion for

sanctions.

              If 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
              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


____________________________________________
3
  We reject the Commonwealth’s assertion that recorded prison phone calls
are not “electronic surveillance” under Rule 573(B)(1)(g) and that
“[Appellee] had equal access to the prison recordings.” Commonwealth’s
Brief at 17; see also Commonwealth v. Hanford, 937 A.2d 1094, 1100
(Pa. Super. 2007) (discussing Rule 573(B)(1)(g) in the context of a
“telephone conversation with a defense witness, recorded while he was in
jail prior to trial[]”), appeal denied, 956 A.2d 432 (Pa. 2008). Hanford also
rejected the arguments forwarded by the Commonwealth that Rule 573 was
not violated because the defendant was “advised that [his] calls [were]
being recorded[]” and because “the defendant [was] aware of the material in
question[.]” Id. at 1101.



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            other order as       it   deems   just   under   the
            circumstances.

Pa.R.Crim.P. 573(E). Concerning the form of any relief to be granted, our

cases have held that Rule 573(E) contains a requirement of proportionality.

That is to say, “the remedy in the criminal proceeding is limited to denying

the prosecution the fruits of its transgressions.” Jordan, supra, quoting In

re York Cnty Dist. Attorney’s Office, 15 A.3d 70, 73 (Pa. Super. 2010).

     We first address the Commonwealth’s assertion that it only offered to

transcribe the two tapes it intended to introduce, not all 466 tapes.

Commonwealth’s Brief at 9. Conversely, the trial court’s opinion appears to

indicate that it believed the Commonwealth volunteered to translate all 466

tapes, and that such transcription was required by its directive. Trial Court

Opinion, 9/17/15, at 4-5.

     At the February 10, 2015 hearing, the Commonwealth informed the

trial court and Appellee it had 466 phone call recordings in its possession,

and gave Appellee a partial transcription, made by the assistant district

attorney (ADA), so that Appellee could “know exactly what [was] on the two

phone calls that [it] wanted to introduce.”   N.T., 2/10/15, at 15.   At the

hearing on Appellee’s initial motion for sanctions, the following exchange

occurred.

            The Court: Okay. At this time I am going to deny
            [Appellee’s] sanctions motion, and I will allow you a
            continuance so that you can have time to review the
            tapes.


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                                   …

          [Commonwealth]:        Your     Honor,     in   the
          meantime, I’m going to have these tapes officially
          transcribed by a certified translator, not from the
          court, and provide a copy to [Appellee] in the
          meantime.

                I would obviously ask for the fastest date
          possible.   I know [the trial court has] a busy
          calendar. I think it would take me no more than 30
          days to get these transcribed.

                                   …

          [Defense Counsel]:      I would ask the tapes to be
          provided 60 days prior to trial, the transcripts.

          The Court: We’re just going to give it a regular date
          because I don’t know if he can send it to you 60 days
          prior if we give it a shorter date.

          [Defense Counsel]:      If we have a short date, your
          Honor, could it be 30 days prior to trial?

          [Commonwealth]:        That’s fine.

          The Court: Okay. [L]et’s see if we can find a date.

                What I’m going to say is that they have to be
          passed three weeks prior to trial because I want to
          make sure there is enough time for the transcription
          to be completed and done right so that you can
          review it.

          [Defense Counsel]:      Your Honor, the reason that
          I’m asking that it be Commonwealth time is because
          they are the ones that want to use the tapes. This is
          their evidence.

          The Court: I understand. And you want to review all
          the tapes because there may be something in there
          that you may want to use.      I understand your


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              argument.  But it’s          not     going   to   be   marked
              Commonwealth time.

                                               …

              The Court: … What date did you give it?

              Court Crier:         4/7.

Id. at 21-23.

       Based on the above excerpt, we agree with the Commonwealth that

the trial court’s assertion that the Commonwealth agreed to transcribe all

466 tapes is not supported by the record.                  As highlighted above, the

Commonwealth had turned over a partial transcription by the ADA of the two

calls it planned to introduce into evidence.               In our view, the transcript

reveals that when placed in context, the Commonwealth’s statement, that it

would “have these tapes officially transcribed,” refers to the two tapes it

referenced in its argument to the trial court.4 Id. at 21 (emphasis added).


____________________________________________
4
   The Commonwealth argues that Rule 573 does not require it to
affirmatively create transcripts as part of discovery.         See generally
Commonwealth’s Brief at 14-15; Commonwealth v. Robinson, 122 A.3d
367, 373-374 (Pa. Super. 2015) (stating, “the general rules … did not grant
the [trial] court inherent rule making authority or the discretionary power to
order the Commonwealth to prepare written transcripts in addition to the
video copies of the interviews [in question]”), appeal denied, 130 A.3d 1289
(Pa. 2015). While we agree with the Commonwealth that the Rule does not
generally require transcripts be created in discovery, we cannot ignore the
certified record in this case, which reveals the Commonwealth elected to
volunteer to have two of the tapes transcribed. See generally N.T.,
2/10/15, at 21.




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This view is reinforced by the timeline established by the trial court of

setting the next trial listing for April 7, 2015.       Under the trial court’s

directive, the Commonwealth would have had to turn over any transcripts no

later than March 17, 2015.           As the Commonwealth points out, this was

“perhaps a plausible timeframe for the two relevant conversations, which

totaled approximately six minutes, but outstandingly implausible if the

Commonwealth was supposed to produce more than 93 translations a week

for five weeks.”5          Commonwealth’s Brief at 12.       Based on these

considerations, we conclude that the Commonwealth only volunteered to

transcribe two of the tapes.6 To the extent the trial court’s preclusion order

applies to the remaining 464 tapes, any issue pertaining to the same is




____________________________________________
5
  Appellee also acknowledges, “the Commonwealth promised to have a
certified translation done of the conversations it wished to offer ….”
Appellee’s Brief at 9 (emphasis added); see also id. at 13 (“stating, “the
Commonwealth … asserted that it would have the two recordings transcribed
by an official translator[]”).
6
  To the extent the Commonwealth argues that there is no binding
agreement in this case due to lack of consideration, we note that the
Commonwealth did not raise this argument in the trial court. Appellee’s
response to the Commonwealth’s motion for reconsideration specifically
argued that “the Commonwealth … ultimately agreed to transcribe the tapes,
and have it done so by a neutral party.” Appellee’s Response to the
Commonwealth’s Reconsideration Motion, 4/5/15, at 11.                   The
Commonwealth did not argue at the April 10, 2015 reconsideration hearing
that there was no binding agreement, for want of consideration or otherwise.
As a result, we deem this argument waived on appeal. See generally
Pa.R.A.P. 302(a).



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moot, as the Commonwealth has consistently maintained throughout the

case that it never intended to utilize those other tapes at trial.

      The Commonwealth next argues that after it volunteered to have the

two conversations transcribed, it decided that it was unable to do so because

it “wouldn’t pay [the translator’s] fee[.]”    N.T., 3/25/15, at 4.    Therefore,

instead, the Commonwealth enlisted two police detectives to translate and

transcribe the relevant tapes, and said transcriptions would be turned over

when completed.     Id.; Commonwealth’s Brief at 11.        The Commonwealth

therefore argues that it substantially complied with the trial court’s order as

it understood it. Commonwealth’s Brief at 11.

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

the   Commonwealth      appealed   from   an    order   “precluding   34   of   the

Commonwealth’s witnesses from testifying at the trial … as a result of the

Commonwealth’s failure to provide the defendants with transcripts of the

witnesses’ grand jury testimony in accordance with an agreement reached

on February 27, 2009.”         Id. at 493.      Relevant to this appeal, the

Commonwealth in Hemingway argued that the trial court abused its

discretion in precluding the witnesses’ testimony because it “substantially

complied with the terms of the February 27 order” and because the sanction

was disproportionate. Id. at 502. The Commonwealth acknowledged that it

was supposed to turn over the transcripts in question by July 6, 2009, but

did so four days later on July 10, 2009.       Id.   We concluded that the trial


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court abused its discretion in precluding the testimony on the following

grounds.

           The record reflects that the attorney representing
           the Commonwealth intended to comply with the
           February 27 order, but erroneously believed that the
           grand jury testimony was to be provided to defense
           counsel on July 9, not July 6. The Commonwealth
           provided the transcripts on July 10—four days after
           the ordered deadline; one day past the deadline the
           Commonwealth erroneously believed was set by the
           trial court—which was late, but in advance of trial
           nonetheless. The Commonwealth also offered to
           provide defense counsel with the order in which it
           would call its witnesses to afford defense counsel
           more time to review the witnesses’ testimony prior
           to each day of trial.

           The February 27 order was borne out of an attempt
           to streamline the trial. Defense counsels’ receipt of
           the transcripts in advance of the witnesses’
           testimony, coupled with the Commonwealth’s offer
           to provide defense counsel with an ordered witness
           list, would accomplish that goal and would have
           resulted in substantial compliance with the agreed
           upon order.     Moreover, it was clearly not the
           intention of the trial court to terminate the
           prosecution when it enforced its order precluding the
           34 witnesses from testifying.

           This does not mean that a trial court cannot 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 of the parties abjectly refuse to comply.
           However, the record does not support such a finding
           in the instant case.

           Therefore, we agree with the Commonwealth that
           the decision of the trial court to preclude the
           testimony of the 34 witnesses must be reversed
           because    the   Commonwealth      substantially

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              complied with the terms of the pretrial conference
              order of February 27, 2009[.]

Id. at 502-503 (emphasis added).

        Turning to this case, the record reveals, as noted above, that the

Commonwealth told the trial court that it would obtain transcripts from a

certified translator. N.T., 2/10/15, at 21. However, after the hearing, the

ADA assigned to the case “reached out to an official transcriber with the

Commonwealth of Pennsylvania and [the ADA’s] office wouldn’t pay his

fee[.]” N.T., 3/25/15, at 4. In an effort to comply, the Commonwealth had

“Detective Rivers and Detective Diaz who are both fluent in both languages”

translate the two calls in question.7 Id. at 4-5. The ADA stated that “the

only impediment [to its full compliance was] … the cost … of the transcribing

or [of] … farm[ing] it out to another person.” Id. at 5. The ADA continued

that “[t]hree days after [the trial court] asked [him] to do this, [he] went

through the process, [and] took it all the way up to [the] trial deputy to try

to resolve this issue, he said no, so as soon as he said no, [the ADA] got the

wheels in progress to try to get [the] detectives on board.” Id.

        In our view, the trial court was within its discretion to order the

sanction of preclusion in this case.           As noted above, in Hemingway, this

Court concluded that the Commonwealth substantially complied because

even though it was late in providing the grand jury transcripts, it did provide
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7
    The Detectives’ first names are not included in the certified record.



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them to the defense and “in advance of trial[.]”     Hemingway, supra at

502.   In this case, the Commonwealth agreed to “have these [two] tapes

officially transcribed by a certified translator … and provide a copy to

[Appellee.]” N.T., 2/10/15, at 21. Unlike Hemingway, the Commonwealth

was not merely late in its compliance, but rather the Commonwealth

reneged, because the Commonwealth “reached out to an official transcriber

… and [the Commonwealth] wouldn’t pay his fee[.]” N.T., 3/25/15, at 4. It

is not disputed that neither Detectives Rivers and Diaz, nor the ADA, is a

certified translator.   In addition, the record reveals that the partial

transcriptions the Commonwealth did turn over were incomplete, due to

some words and phrases that the ADA could not translate. N.T., 3/25/15, at

6; Commonwealth’s Brief at 6.

       In Hemingway, we clarified that our holding did not mean that “a trial

court cannot 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 of the parties abjectly refuse to comply.”

Hemingway, supra at 503.        Here, the Commonwealth agreed to procure

translations of the two phone calls by an independent certified translator

after it faced a motion for discovery sanctions seeking to preclude their

admission. As a result of that agreement, the trial court declined to preclude

the tapes, and instead granted a continuance so the parties could carry out


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the agreement.       However, the Commonwealth refused to comply when it

balked at paying the costs of fulfilling its own promise. This is the type of

situation we contemplated in our caveat in Hemingway.           We therefore

conclude the Commonwealth has not substantially complied in this case.

      In addition, we reject the Commonwealth’s assertion that once it

became apparent that it would not comply, the onus fell on the trial court to

grant another continuance.        Although a continuance would have been

warranted if the Commonwealth needed additional time, this is not the case.

The Commonwealth outright refused to pay the cost of the certified

translator; therefore, no number of continuances would have sufficed,

because the Commonwealth was not going to pay the fees to translate the

relevant phone calls.    Therefore, we conclude that in this case, the “trial

court [could] preclude evidence[.]” Hemingway, supra.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion when it precluded the Commonwealth from introducing the

tapes in question.     See id.   Accordingly, the trial court’s March 25, 2015

order is affirmed.

      Order affirmed.

      Judge Musmanno joins the memorandum.

      Judge Bowes files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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