J-A02025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

NATHANIEL MCGHEE

                            Appellee                 No. 52 EDA 2014


             Appeal from the Order Entered on November 25, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: MC-51-CR-0038021-2012


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED MAY 06, 2015

       The Commonwealth appeals the Philadelphia County Court of Common

Pleas’ order affirming the Philadelphia Municipal Court’s order, which

suppressed the testimony of the arresting officer in this driving under the

influence (“DUI”) prosecution.1 The municipal court entered its order as a

sanction for the Commonwealth’s failure to satisfy a discovery order,

____________________________________________


1
       The Commonwealth has certified that the interlocutory order from
which it appeals “substantially handicaps” the prosecution pursuant to
Pa.R.A.P. 311(d) (permitting the Commonwealth to appeal “as of right from
an order that does not end the entire case where the Commonwealth
certifies . . . that the order will terminate or substantially handicap the
prosecution”). See Certification of Substantial Impairment, 6/14/2013,
app’x to Petition in Support of Appeal from Ruling in Municipal Court.
Although no such certification appears in the Commonwealth’s notice of
appeal to this Court, we will accept in its place the Commonwealth’s
conforming certification in the documents appended to its appeal to the
court of common pleas.
J-A02025-15



effectively terminating the prosecution’s case against Nathaniel McGhee.

The court of common pleas, sitting as an appellate court on certiorari from

the municipal court, affirmed the lower court’s decision.         After careful

review, we reverse and remand for further proceedings.

      The trial court has provided the following factual and procedural

history of this case:

      Appellee, Nathaniel McGhee, was charged with Driving Under the
      influence: General Impairment / Incapable of Driving Safely
      ([first] offense).1 The Municipal Court granted a motion to
      preclude the [arresting] officer’s testimony due to the
      Commonwealth’s failure to produce the Mobile Data Terminal
      (MDT) document.       Notes of Testimony Motions (“N.T.M.”),
      5/29/2013, at 10-12. On March 5, 2013, the municipal court
      ordered the Commonwealth to turn over the MDT as part of
      discovery.     Id. at 5.   At the May 29, 2013 listing, the
      Commonwealth did not turn over the MDT as required. Id. at
      11. There was no offered explanation for the Commonwealth’s
      failure to comply with the [municipal] court’s discovery order.
      Id. McGhee argued that without the MDT [d]efense [c]ounsel
      would be unable to adequately represent McGhee through
      cross[-]examination. Id. at 10-12. McGhee requested [that] the
      officer’s testimony be precluded as a remedy under
      Pa.R.Crim.P. 573(E) for the Commonwealth’s failure to comply
      with the discovery order. Id. at 11. The municipal court
      ordered that the officer’s testimony be precluded. Id. at 12.
      The Commonwealth appealed the decision.

         ___________
         1
             75 Pa.C.S. § 3802(a)(1).

      [The trial court] held a hearing on November 25, 2013. After
      oral argument, [the trial court] found that the [municipal] court
      was within its discretion in prohibiting the officer’s testimony due
      to the Commonwealth’s failure to produce the MDT. Id. at 11-
      12.    [The trial court] thus upheld the [municipal] court’s
      decision.



                                     -2-
J-A02025-15


       The Commonwealth filed a timely appeal together with its
       [Concise] Statement of Errors Complained of on Appeal,
       pursuant to Pa.R.A.P. 1925(b), on December 23, 2013.

                                         ****

       The facts underlying the [municipal] court’s decision are as
       follows:

       On March 5, 2013, the [municipal] court ordered the
       Commonwealth to produce the [MDT] and CAD[2] to the defense
       by the next listing. N.T.M at 5.

       The Commonwealth ordered the MDT from the police department
       on March 19, 2013, but never received it. Id. at 11.

       On May 29, 2013, the Commonwealth passed the CAD but not
       the MDT. N.T. Common Pleas Appeal (“N.T.A.”), 11/25/2013,
       at 12.

       The Commonwealth offered no explanation for why the MDT was
       never provided to the defendant. Id. at 11.

Trial Court Opinion, 3/12/2014, at 1-3           (citations and nomenclature

modified).

       Notably, at the May 29, 2013 hearing before the municipal court,

counsel for McGhee expressly stated that “the appropriate remedy is not to

dismiss the case.” N.T.M. at 11. The court nonetheless barred the arresting

officer from testifying, over and above the Commonwealth’s objection that

“you’re precluding the only arresting officer from testifying in the case. So

you’re, in effect, dismissing the case based on a discovery violation.”   Id.

The court responded, “Well, I guess I must be doing that.” Id.

____________________________________________


2
      The record is unclear regarding what CAD stands for, but we believe it
refers to Computer-Aided Dispatch.



                                           -3-
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      After taking argument, the trial court found that the municipal court

had not abused its discretion.     Accordingly, it denied the Commonwealth

relief from the municipal court’s ruling. This appeal followed.

      Before this Court, the Commonwealth raises the following issue:

      Did the [court of common pleas], sitting as an appellate court,
      err in affirming an order effectively ending [McGhee’s] DUI
      prosecution, because [McGhee] lacked an item of non-
      mandatory discovery that he failed to show prejudiced him and
      there was no evidence of egregious prosecutorial bad faith?

Brief for the Commonwealth at 2.

      The   events    of   this    case    substantially   are    governed   by

Pa.R.Crim.P. 573, which provides, in relevant part, as follows:

      (B)   Disclosure by the Commonwealth.

                                    ****

      (2)   Discretionary [w]ith the Court.

         (a)     In all court cases, . . . if the defendant files a
         motion for pretrial discovery, the court may order the
         Commonwealth to allow the defendant’s attorney to
         inspect and copy or photograph any of the following
         requested items, upon a showing that they are material to
         the preparation of the defense, and the request is
         reasonable:

                                    ****

            (ii)  all written or      recorded statements,      and
            substantially verbatim oral statements, of eyewitnesses
            the Commonwealth intends to call at trial;

                                    ****

            (iv) any other evidence specifically identified by the
            defendant, provided the defendant can additionally



                                     -4-
J-A02025-15


              establish that its disclosure would be in the interests of
              justice.

       (E) Remedy.       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, . . . or it may enter such other order as it
       deems just under the circumstances.

Pa.R.Crim.P. 573.3          The   defendant      must   “shoulder   the   burden   of

demonstrating to the trial court that the discovery information sought is

material, that the request is reasonable, and that the disclosure is in the

interests of justice.”      Commonwealth v. Novasak, 606 A.2d 477, 483

(Pa. Super. 1992).       The defendant also must demonstrate that he was

prejudiced by the discovery violation.              Commonwealth v. Causey,

833 A.2d      165,    171     (Pa. Super. 2003)     (citing   Commonwealth         v.

Counterman, 719 A.2d 284 (Pa. 1998)).

       Notwithstanding that the defendant seeking discretionary discovery

bears a weighty burden, we also have held that Rule 573(E) “gives the trial

court broad discretion in formulating remedies for a failure to comply with

discovery requirements.” Commonwealth v. Galloway, 771 A.2d 65, 68




____________________________________________


3
      Various cases cited in our discussion were decided under former
Pa.R.Crim.P. 305, Rule 573’s predecessor. Paragraph E of Rule 573 tracks
verbatim the corollary provision found at paragraph E of former Rule 305.
Consequently, we rely upon case law concerning either version of the rule.



                                           -5-
J-A02025-15



(Pa. Super. 2001). Our Supreme Court has recognized that dismissal may

be an appropriate sanction for certain discovery violations:

      In some cases, under some facts, it may be appropriate for a
      court to dismiss charges where the Commonwealth fails to abide
      by an order of that court. It is absolutely necessary for a court
      to have the power and the tools not only to control its own
      docket, but also to control its own courtroom. Thus, the option
      of dismissal of charges is rooted in [the] common law and
      inherent in the authority of the judiciary.

Commonwealth v. Shaffer, 712 A.2d 749, 752 (Pa. 1998) (opinion

announcing the judgment of the court). “However, the discretion to dismiss

is not unfettered and, as it is such a severe sanction, should be used only in

instances of absolute necessity.” Id.

      In exercising its discretion to grant or deny a request for
      discretionary discovery, the court is to be guided by the
      following principle of the ABA Standards Relating to Discovery
      and Procedure Before Trial, § 1.2 (Approved Draft, 1970): “In
      order to provide adequate information for informed pleas,
      expedite trials, minimize surprise, afford opportunity for effective
      cross-examination, and meet the requirements of due process,
      discovery prior to trial should be as full and free as possible
      consistent with the protection of persons, effective law
      enforcement, the adversary system, and national security.”
      Pa.R.Crim.P. 305 Comment.

Commonwealth v. Thiel, 470 A.2d 145, 148 (Pa. Super. 1983).

      This Court has offered the following cautionary observation:

      Dismissal of criminal charges punishes not only the
      prosecutor . . . but also the public at large, since the public has a
      reasonable expectation that those who have been charged with
      crimes will be fairly prosecuted to the full extent of the law.
      Thus, the sanction of dismissal of criminal charges should be
      utilized only in the most blatant cases. Given the public policy
      goal of protecting the public from criminal conduct, a trial court

                                      -6-
J-A02025-15


      should consider dismissal of charges where the actions of the
      Commonwealth are egregious and where demonstrable prejudice
      will be suffered by the defendant if the charges are not
      dismissed.

Commonwealth v. A.G., 955 A.2d 1022, 1025 (Pa. Super. 2008) (quoting

Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001)).                       In

Commonwealth v. Wm. Smith, 955 A.2d 391 (Pa. Super. 2008) (en

banc), this Court construed Burke as follows:

      [W]hile we should not minimize the ethical and legal obligations
      of the prosecution to comply with discovery requirements,
      “where there is no evidence of deliberate, bad faith overreaching
      by the prosecutor intended to provoke the defendant into
      seeking a mistrial or to deprive the defendant of a fair trial, the
      proper remedy for the Commonwealth’s failure to disclose
      exculpatory materials should be less severe than dismissal.”

Wm. Smith, 955 A.2d at 395 (quoting Burke, 781 A.2d at 1144). Thus, far

more frequently we have held that a sanction that will have the effect of

entirely terminating a prosecution is “a penalty far too drastic” for less than

egregious violations of the rule, and found that lesser sanctions were

appropriate, often in the form of providing a continuance during which the

Commonwealth can comply with the discovery obligation in question.

See Commonwealth v. Yost, 502 A.2d 216, 219-20 (Pa. Super. 1985);

Commonwealth v. Parente, 440 A.2d 549, 552 (Pa. Super. 1982).

      “The imposition of sanctions for a . . . violation of Pa.R.Crim.P. 305 is a

matter normally within the discretion of the trial court. Thus this [C]ourt’s

standard of review of the sanction imposed is whether the trial court abused

that discretion.”    Commonwealth v. Prisk, 744 A.2d 294, 297 n.5


                                      -7-
J-A02025-15



(Pa. Super. 1999).    “An appellate court cannot find an abuse of discretion

merely for an error of judgment unless, in reaching a conclusion, the trial

court overrides or misapplies the law or its judgment is manifestly

unreasonable.”       Commonwealth v. Ashton, 824 A.2d 1198, 1202

(Pa. Super. 2003).

     Against this backdrop, the Commonwealth argues that the trial court

abused its discretion in upholding the sanction of barring entirely the sole

arresting officer from testifying, which, in this DUI case, is tantamount to

dismissing the charges.    The Commonwealth begins its argument with a

tendentious series of claims that do not appear to have been asserted in

clear terms during argument before the municipal court or the trial court:

     Defendant failed to show what an MDT form is, that one exists in
     this case, or how its absence demonstrably prejudiced him. He
     offered only speculation that the document might contain
     something he could use to cross-examine the arresting officer.
     Defendant also failed to assert, much less prove, egregious
     prosecutorial bad faith in not producing the document.

Brief for the Commonwealth at 9. After fully reviewing the transcripts of the

proceedings   below,    nowhere   do    we   find   any   indication   that   the

Commonwealth asserted that the MDT did not exist or offer any definitive

characterization of what information the MDT might contain.

     At its most clear, the Commonwealth suggested that an MDT is

“something that is communication when the stop is initially initiated, it’s

communications of where the stop might have been or what officer or what

time,” elaborating that “it’s not prejudicial, it doesn’t have any additional

                                       -8-
J-A02025-15



things outside of” other discovered documents.         N.T.A. at 8.    McGhee

responded that the MDT might contain more information:

      On there they can type in, hey, get me a cup of coffee, then can
      send messages, hey, stop that guy, stop that guy, I don’t like
      the way he looked at me when he just passed, you know, can
      you grab him. . . . And again, without having it to say that
      there’s nothing on there that isn’t included in [other discovery] is
      just a guess.

Id.   The Commonwealth did not contradict this description. However, the

Commonwealth did attest that it had sought the requested record from the

police, a curious request if the Commonwealth questioned the existence of

such a document or was not acquainted with its contents. Thus, we will not

consider this line of argument, which was not first pressed in the municipal

or trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

      More substantively, the Commonwealth relies heavily upon Burke and

Wm. Smith, supra. Brief for the Commonwealth at 11-12, 14. Here, the

Commonwealth finds more purchase.          In Burke, the defendant and a

juvenile, co-employees of a restaurant, staged a sham robbery of the

restaurant.   Burke and the juvenile gave consistent oral and written

statements to the police describing the confabulated story of a putative

robbery by other parties. Two days later, a friend of the juvenile provided a

handwritten statement to investigators indicating that the juvenile had

confessed his complicity in the crime.     The juvenile thereafter agreed to




                                     -9-
J-A02025-15



testify against Burke in exchange for the dismissal of all the charges against

the juvenile. Burke, 781 A.2d at 1137-38.

      Burke then was charged.      Shortly thereafter, he made an informal

request for pre-trial discovery and inspection.    Three months passed, and

then Burke filed a motion to compel discovery and inspection, demanding

various specific items and categories of evidence.       The Commonwealth

represented to the court that it had complied with those requests.        Id.

at 1138.

      At trial, during cross-examination, the juvenile indicated that he had

provided a handwritten statement to investigators on the night of the crime.

Burke’s counsel immediately indicated to the court that he had never

received such a statement.     The Commonwealth responded that, to the

police officers’ recollections, no such handwritten statement had been taken.

The prosecutor asserted that she had no such statement in her possession.

Id.

      Later, Burke requested a copy of the handwritten statement that Burke

had furnished on the night of the robbery.        Initially, the Commonwealth

indicated that it did not have that statement in its possession, either.

However, shortly thereafter, the prosecutor produced Burke’s statement.

When the defense expressed concern that the Commonwealth had the

juvenile’s statement as well, the court ordered the Commonwealth to

conduct a thorough search for such a statement, and continued the trial until

the following afternoon. Id. at 1138-39.

                                    - 10 -
J-A02025-15



      The following day, the prosecutor indicated that she had found the

juvenile’s written statement. She further admitted that she found four other

items responsive to Burke’s pre-trial discovery request that had not been

furnished previously, including a number of investigative reports and the

handwritten statement of the witness who implicated the juvenile in the

crime.   The trial court concluded that the Commonwealth had violated its

discovery obligations, and dismissed all charges against Burke. In so doing,

the trial court found that the Commonwealth had not intentionally withheld

the evidence in question, but also found that the prosecution had been

“grossly negligent,” and had violated its due process obligation under Rule

305 and Brady v. Maryland, 373 U.S. 83 (1963) (obligating the

prosecution to disclose to the defense all potentially exculpatory information

including impeachment evidence). Burke, 781 A.2d at 1139.

      The trial court reasoned that Burke’s juvenile accomplice already had

testified, had been cross-examined, and had been released from his

subpoena, such that the late disclosure deprived Burke of the opportunity to

effectively cross-examine the juvenile in light of that statement:

      If the non-disclosure had truly been something beyond the
      control of [the prosecution], then perhaps the declaration of a
      mistrial or some lesser remedy would have been appropriate.
      Here, however, the prosecution’s conduct in failing to exercise
      the minimal level of due diligence necessary to [e]nsure that its
      obligations were carried out[] was so egregious [that] dismissal
      was the only appropriate remedy.

Id. at 1439-40 (quoting trial court opinion).



                                    - 11 -
J-A02025-15



     On appeal by the Commonwealth, this Court reversed. We specifically

rejected the trial court’s finding of gross negligence.   Citing our Supreme

Court’s decision in Commonwealth v. Montgomery, 626 A.2d 109

(Pa. 1993), this Court “noted that the prosecution cannot be deemed to

have violated discovery rules when, despite reasonable inquiry, it fails to

discover and disclose evidence it neither possesses nor is aware of, such as

evidence exclusively in police control.”    Burke, 781 A.2d at 1140.       Our

Supreme Court then accepted review.

     Having found an undisputed Brady violation, the Supreme Court

proceeded to address whether dismissal was an appropriate remedy under

the circumstances presented:

     The “remedy” provision in [Rule 305] lists numerous appropriate
     courses of remedial action, such as permitting discovery or
     inspection, granting a continuance, or prohibiting introduction of
     evidence.    It is notable, however, that the Rule does not
     authorize an outright dismissal of charges, except to the extent
     that the residual phrase, “or . . . such other order as [the court]
     deems just under the circumstances,” could be said to
     encompass the extreme remedy of discharge. . . .              [T]he
     precedents cited by the trial court and [Burke] support the view
     that the discharge ordered here was too severe. See, e.g.,
     Kyles v. Whitley, 514 U.S. 419, 454 (1995) (new trial granted
     where net-effect of seven evidentiary items suppressed by state
     raised reasonable probability that disclosure would have
     produced different result at trial); Giglio v. United States, 405
     U.S. 150 (1972) (prosecution’s failure to disclose alleged
     promise made to its key witness that he would not be
     prosecuted if he testified for government required new trial).

     Thus, while it is undoubtedly true that the trial court possesses
     some discretion in fashioning an appropriate remedy for a Brady
     violation, that discretion is not unfettered. It must be exercised
     in light of the competing values weighed in the Brady analysis,


                                   - 12 -
J-A02025-15


      and in light of the teachings in prior cases involving similar
      concerns. See Coker v. S.M. Flickinger Co., Inc., 625 A.2d
      1181, 1184 (Pa. 1993) (“[D]iscretionary power can only exist
      within the framework of the law . . . .”).

Burke, 781 A.2d at 1143 (citations modified).

      The Court then proceeded to examine cases in which prosecutorial

misconduct had been deemed so egregious as to warrant dismissal.             In

Commonwealth v. Jay Smith, 615 A.2d 321, 325 (Pa. 1992), for example,

the prosecution failed to disclose physical evidence it discovered mid-trial—

grains of sand found between the toes of the murdered decedent—that

corroborated the defense theory that the killing had been committed in Cape

May, New Jersey, by someone other than the defendant, rather than having

been committed by the defendant in Pennsylvania. Making matters worse,

when an investigator testified at trial that granular particles that looked like

sand had been removed from the victim’s body, the Commonwealth “implied

that he had fabricated his testimony and the trial prosecutor recommended

to his superior that he investigate the feasibility of prosecuting the state

trooper for perjury.” Burke, 781 A.2d at 1145 (discussing Smith). Later

during trial, the state police discovered the adhesive lifters that had been

used to remove and retain the sand from the victim’s feet, but the

prosecution continued to suppress the evidence for the next two years, while

the case was on direct appeal to the Supreme Court. Id. at 1144-45. Our

Supreme Court discharged the defendant, finding that retrial of a defendant

was unwarranted “when prosecutorial misconduct is intended to provoke the



                                     - 13 -
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defendant into moving for a mistrial, [and] when the conduct of the

prosecutor is intentionally undertaken to prejudice the defendant to the

point of the denial of a fair trial.” Jay Smith, 615 A.2d at 325.

       The Burke Court then contrasted cases of prosecutorial misconduct

that did not warrant dismissal.         In Commonwealth v. Moose, 602 A.2d

1265 (Pa. 1992), for example, the Court found that the prosecution’s failure

to inform the defense of a witness statement containing incriminating

admissions ascribed to the defendant constituted a willful violation of

Rule 305.     The Court referred the matter to the Disciplinary Board, but,

rather than dismissing the charges, remanded for a new trial. See Burke,

781 A.2d at 1145 (discussing Moose).

       Returning to the facts at bar in Burke, the Court explained as follows:

       The prosecutor’s conduct in the matter [then at bar did] not
       approach that of the prosecutor in Moose, let alone resemble
       the deliberate, bad[-]faith prosecutorial misconduct [that]
       warranted dismissal under Shaffer, McElligott,[4] and Jay
____________________________________________


4
      Despite the Burke Court’s wording suggesting that dismissal was
warranted in Shaffer and McElligott, in point of fact in neither case was
dismissal upheld. See Shaffer, supra (declining to uphold dismissal where
the prosecutor knowingly scheduled a vacation during the trial term during
which defendant’s case was scheduled to go to trial and no trial term was
scheduled for the following month because the defendant was not prejudiced
by the consequent delay); Commonwealth v. McElligott, 432 A.2d 587
(Pa. 1981) (overturning a trial court-ordered mistrial based upon
prosecutors’ failure to turn over inconclusive fingerprint results that might be
exculpatory, explaining that, although “the record suggest[ed] that the
prosecutor may have been deficient in judgment or knowledge of the law,
we can hardly describe his behavior as intentional bad faith misconduct”).
Consequently, we construe the Court to have intended to suggest that if
(Footnote Continued Next Page)


                                          - 14 -
J-A02025-15


      Smith.     There is no evidence here pointing to deliberate
      overreaching by the prosecutor. Indeed, it is not even apparent
      that the undisclosed evidence differed in quality from information
      already made available to appellant.

                                          ****

      Rather than prosecutorial misconduct, it appears that this case
      primarily involves miscommunication between the police
      departments involved in the investigation and/or police
      mishandling of the evidence. . . . Whatever may have been the
      reason for the nondisclosure here, it is apparent from the record
      that it did not result from deliberate misconduct by the
      prosecutor designed to compel appellant into moving for a
      mistrial or to deprive appellant of a fair trial.

      While this Court does not minimize the ethical and legal
      obligations of the prosecution to comply with lawful discovery
      requirements, where there is no evidence of deliberate, bad faith
      overreaching by the prosecutor intended to provoke the
      defendant into seeking a mistrial or to deprive the defendant of a
      fair trial, the proper remedy for the Commonwealth’s failure to
      disclose exculpatory materials should be less severe than
      dismissal.

Burke, 781 A.2d at 1145-46 (citations modified). Accordingly, the Supreme

Court reversed the trial court’s dismissal of the charges and remanded for a

new trial.

      Against these compelling principles and precedents, which strongly

favor the Commonwealth’s argument in this case, McGhee begins by

stressing the putative importance of the MDT evidence he seeks. He argues

that the MDT may provide important information for the impeachment of the

arresting officer. Brief for McGhee at 6-7. Indeed, his argument in general
                       _______________________
(Footnote Continued)

dismissal was not upheld in those cases, then it should not be upheld in
Burke.



                                           - 15 -
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is heavy on undisputed principles regarding the importance of full disclosure,

pursuant to the requirements of Brady and its progeny, of all potentially

exculpatory or impeachment evidence. However, his case citations also are

heavy on instances when sanctions less dramatic than dismissal were

ordered.   The lone exception is Jay Smith, and, as the above description

makes clear, the abuses at issue in that case exceeded by orders of

magnitude those alleged in this case.

      In favor of dismissal McGhee offers the following contentions:

(1) None of the examples of sanctions included in Rule 573(E) can remedy

the Commonwealth’s ongoing failure to produce the MDT, see Brief for

McGhee at 8-9; and (2) In all of the anti-dismissal cases cited by the

Commonwealth, the government eventually had furnished the previously

withheld evidence, while in this case the MDT remains unproduced, see id.

at 9-11.

      In his first line of argument, McGhee contends that the court can find

no further recourse in Rule 573(E)’s non-exhaustive list of options for

rectifying a discovery error.   First, McGhee rejects the first option, court-

ordered discovery or inspection, because the trial court already took such

action in this case to no avail. As for the second option, the allowance of a

continuance, McGhee submits that “[a] continuance would not remedy the

situation, the government could not explain its refusal to produce [sic],” and

the Commonwealth has made no indication that it would benefit from more

time to do so.     Regarding the third Rule 573(E) option, barring the

                                    - 16 -
J-A02025-15



admission of the undiscovered evidence, McGhee submits that he, rather

than the prosecution, seeks to admit the MDT evidence in the first instance.

Thus, barring its admission would amount to no sanction at all.        Brief for

McGhee at 8-9.      Thus, considering the government’s lengthy delay in

satisfying McGhee’s request for the MDT, the lack of diligence in seeking the

information, and the Commonwealth’s lack of justification, McGhee tacitly

submits that dismissal is the only remaining remedy.

      McGhee’s argument excludes the panoply of alternative sanctions the

court might impose in “enter[ing] such other order as it deems just under

the circumstances,” as per the express terms of Rule 573(E). And while the

rare dismissal of a case that occurs necessarily arises pursuant to this elastic

authority, that does not suggest that that option is exclusive of all other

unenumerated options. Furthermore, Rule 573(E) does not prevent a court

from imposing other sanctions designed, e.g., to ensure compliance even in

satisfying a previously unsatisfied order, such as the prior discovery order in

this case. McGhee’s argument in this regard proves too little.

      In his second argument, McGhee contends that we should reject the

Commonwealth’s analysis because it is based upon cases in which the

discovery ultimately was produced. It is worth noting as well, though, that

all or most of those cases also were tried, unlike this case. Insofar as this

case has not gone to trial, nothing suggests that the evidence in question

cannot be produced upon further efforts, or that the Commonwealth will not




                                     - 17 -
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establish its non-existence, destruction, or unavailability despite duly diligent

efforts to obtain it.5

       Finally, we must conclude that McGhee has failed to establish the sort

of extreme prosecutorial bad faith or the prejudice that would elevate this

case to the point of dismissal. We are sensitive to the fact that, without the

MDT in his possession, it is pointless to speculate as to how, precisely, it

might contribute to his defense, if at all.        However, we believe that the

record does not support the drastic sanction of a suppression order that

effectively terminates the prosecution.        The court has at its disposal other

means to obtain the report or clarify its existence and/or relevance in this

matter, including, but perhaps not limited to, seeking more information from

the arresting officer, a finding of contempt, or the imposition of other

individual sanctions against the Commonwealth’s attorney.

       For the foregoing reasons, we find that the trial court abused its

discretion in affirming the municipal court’s order barring the Commonwealth

from presenting their one eyewitness to McGhee’s alleged intoxicated

driving. That being said, we do not suggest that the Commonwealth’s to-

date none-too-diligent effort to obtain the requested information suffices to


____________________________________________


5
      Except to note the Commonwealth’s long delay and the apparent fact
that the Commonwealth asked only once for the MDT report, McGhee does
not provide a basis upon which to reject this less severe alternative, and he
does not suggest that providing the Commonwealth with another opportunity
to discover the MDT report would cause him undue prejudice.



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end the matter, or that the municipal court erred in finding that the

Commonwealth had committed a sanctionable discovery violation.                 We

simply reject the sanction imposed as excessive relative to the discovery

violation, and find it in derogation of the public interest, at least in the case’s

present posture.

      Accordingly, we reverse the trial court’s order affirming the municipal

court’s ruling that barred the Commonwealth from introducing the testimony

of the investigating officer at trial.     We remand to the trial court with

instructions to remand this case to the municipal court. That court, in turn,

should seek to bring the Commonwealth into compliance with the earlier

discovery order by the means at its disposal, including, but not limited to,

those set forth in Rule 573(E).      We further stress that this ruling is not

intended to bar categorically that court’s discretion to revisit the drastic

sanction of dismissal that we now reject, should further proceedings reveal

or result in the Commonwealth misconduct that clears the very high bar our

Supreme Court has established for that sanction, or one constructively

effectuating that result.

      Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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