J-S10025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JUSTIN J. COLLINS,

                            Appellee                  No. 1956 EDA 2015


                  Appeal from the Order Entered June 15, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008924-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED FEBRUARY 10, 2016

        The Commonwealth appeals from the trial court’s June 15, 2015 order

granting Justin J. Collins’ motion in limine to bar the Commonwealth from

presenting the testimony of the victim and another witness in this case,

unless the Commonwealth provides Collins “with accurate transcripts of

those witnesses’ prior recorded interviews by the Philadelphia Children’s

Alliance (PCA).”     Trial Court Order, 6/15/15.    The Commonwealth argues

that Commonwealth v. Robinson, 122 A.3d 367 (Pa. Super. 2015),

reargument denied (Pa. Super. 2015), compels this Court to reverse the

court’s order and remand for trial. After careful review, we agree with the



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Commonwealth. Accordingly, we reverse the trial court’s order and remand

for trial.

        We summarize the procedural history of this case as follows. Collins

was charged with rape and related sexual offenses, allegedly committed

against a four-year-old, male victim.            During the police investigation, the

victim and another witness were interviewed by PCA, and those interviews

were recorded.1       During pretrial discovery, the Commonwealth provided

Collins with DVD copies of the recorded interviews. However, on November

13, 2014, Collins filed a motion in limine requesting that the trial court “bar

testimonial    evidence      of   the   Commonwealth’s           witnesses   unless     the

Commonwealth        provides      [Collins]    with   accurate    transcripts   of    those

witnesses’ prior recorded interviews by [PCA]….”                    Motion In Limine,

11/13/14, at 1. On December 11, 2014, the Commonwealth filed a brief in

opposition to Collins’ motion.

        The record indicates that the trial court took Collins’ motion in limine

under advisement, pending this Court’s ruling on the same issue in

Robinson.       In that case, we consolidated three separate appeals from

orders identical to the one we examine herein, each of which was issued by

the same trial judge presiding over Collins’ case. While, in the present case,

the trial court initially indicated that it would wait to rule on Collins’ motion


____________________________________________


1
    The identity of the other witness interviewed by PCA is not clear.



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in limine until Robinson was decided, the court ultimately did not do so,

instead issuing the order granting Collins’ motion on June 15, 2015.

       The Commonwealth filed a timely, interlocutory appeal as of right by

certifying in its notice of appeal that the court’s June 15, 2015 order

“terminates or substantially handicaps the prosecution.”      Notice of Appeal,

6/29/15; see also Pa.R.A.P. 311(d) (“In a criminal case, under the

circumstances provided by law, the Commonwealth may take an appeal as

of right from an order that does not end the entire case where the

Commonwealth certifies in the notice of appeal that the order will terminate

or substantially handicap the prosecution.”).2 The Commonwealth also filed

a voluntary Pa.R.A.P. 1925(b) statement, and the trial court issued a Rule

1925(a) opinion on July 8, 2015. Herein, the Commonwealth presents one

question for our review:          “Where the Commonwealth produced a video

record of interviews of the child victim and a witness, did the lower court err

and abuse its discretion by suppressing the Commonwealth’s testimonial

evidence unless the Commonwealth also created a verbatim written

transcript?” Commonwealth’s Brief at 1.

       After the Commonwealth filed the present appeal, and the trial court

issued its Rule 1925(a) opinion, Robinson was decided on August 3, 2015.

The Robinson panel reversed the three orders appealed from there, “which

____________________________________________


2
  We note that Collins does not challenge the appealability of the trial court’s
June 15, 2015 order.



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precluded the testimony of the victims at trial because the Commonwealth

refused to provide written transcripts of the victims’ video interviews” with

PCA. Robinson, 122 A.3d at 369. In doing so, the Robinson panel noted

that “the Commonwealth provided [the defendants] during discovery with

DVD copies of all the victims’ PCA interviews” and, “[t]hus, the evidence was

equally available to [the defendants] in a source other than a written

transcript.” Id. at 373. The Court stressed that the Commonwealth has no

“duty to provide evidence in a form that the defendant demands for the

convenience of the defense.” Id. at 373. Additionally, the Robinson panel

held that “the court abused its discretion in sanctioning the Commonwealth

by precluding the victims’ testimony at trial, which effectively dismissed the

charges against [the defendants].”     Id. at 374.   This Court declared that

“[t]he sanction was too severe under the circumstances, particularly where

[the defendants] have suffered no undue prejudice.” Id.

      Here, the Commonwealth argues that we are bound by Robinson to

reverse the court’s order in the present case.         Collins does not even

acknowledge our decision in Robinson, let alone attempt to distinguish the

trial court’s order in this case from the orders reversed there. Additionally,

the trial court offers the same rationale to support its current order as it did

to justify the orders reversed by the Robinson panel.       Namely, the court

relies “on a similar procedure” of transcribing video recordings ostensibly

imposed by federal courts. Trial Court Opinion, 7/8/15, at 3. The court also

maintains that Rules 403, 613(a), and 611 of the Pennsylvania Rules of

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Evidence, and 42 Pa.C.S. § 323, provide it with “inherent rule making

authority and discretionary power … to require that the Commonwealth

provide an accurate written transcript of all of the PCA interviews conducted

with the complainant-witnesses, and to invoke the remedy of exclusion of

those witnesses in the event the transcripts were not provided.” Id. at 4.

     In rejecting the trial court’s identical rationale in Robinson, we

stated:

     [T]he general rules and statutes the court relied on did not grant
     the court rule making authority or the discretionary power to
     order the Commonwealth to prepare written transcripts in
     addition to the video copies of the interviews. The court’s bald
     assertion that it is common practice in federal courts to
     introduce a transcript with every tape lacks confirmation. There
     is no rule of law, statute, or case that requires the
     Commonwealth to reduce to writing that which is already on
     video and disclosed to the defense.

Robinson, 122 A.3d at 373-74 (internal citation to the record omitted).

     Based on Robinson, we agree with the Commonwealth that the trial

court’s June 15, 2015 order must be reversed.      Here, the Commonwealth

provided the defense with DVD copies of the recorded interviews of the

victim and the other witness, yet the trial court ordered the Commonwealth

to transcribe those recordings for the convenience of the defense.        The

court’s order further stated that if the Commonwealth failed to provide those

transcripts, the Commonwealth would be precluded from presenting the

testimony of the victim and witness at trial. Because Robinson held that

identical orders issued by the trial court were erroneous and an abuse of the

court’s discretion, we reach the same conclusion in the present case.

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Accordingly, we reverse the court’s June 15, 2015 order and remand for

trial.

         Order reversed. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2016




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