J.S24038/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
CHRISTOPHER JOHN PROLENSKI,                 :
                                            :
                          Appellant         :     No. 1860 WDA 2013


           Appeal from the Judgment of Sentence November 18, 2013
                In the Court of Common Pleas of Fayette County
               Criminal Division No(s).: CP-26-CR-0002315-2012

BEFORE: BOWES, JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 13, 2015

        Appellant, Christopher John Prolenski, appeals from the judgment of

sentence of five to twelve years’ imprisonment, imposed after a jury found

him guilty of, inter alia, burglary and robbery.1         Appellant claims the

evidence was insufficient to sustain the convictions, the trial court erred in

overruling his objection to the Commonwealth’s closing argument, and the

Commonwealth failed to disclose a police report.        We are constrained to

affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3502(a)(1), 3701(a)(1)(i).
J. S24038/14


     We summarize the evidence adduced at trial.         On September 26,

2012, shortly after 12:00 p.m., the complainant, Carol Lowther, returned to

her home and found it had been ransacked. When she yelled out to check if

someone was in the home, a man approached her from behind, twisted her

arm around her back, and placed a screwdriver against her abdomen.       The

individual stated he would kill her if she did not give him what he wanted.

The complainant struggled with the individual and was able to turn around

and face him. She saw his face from a distance of approximately one foot.

Her initial impression of the individual was “[j]ust tall and skinny, a white

person.” N.T., 11/5/13, at 22. He was wearing a dark colored sweatshirt

with the hood over his head. Id. at 21. She broke free, ran to a neighbor’s

house, and called 911. The two shirts complainant was wearing at the time

were torn, and she suffered a dislocated shoulder, as well as a scratch on

her abdomen.

     Pennsylvania State Trooper Douglas E. Urey responded to the 911 call

and talked to the complainant. The complainant described the individual as

a white male with dark hair, approximately 5’10” tall with a medium build.

She stated she noticed an unfamiliar red Mustang parked near a neighbor’s

home before the incident. Trooper Urey collected the complainant’s shirts as

evidence. Several items located inside and outside the complainant’s home

were also taken as evidence.




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        Pennsylvania State Trooper Joseph Michael Timms was assigned to

investigate the case.   He interviewed the complainant on September 27,

2012, the day after the incident, and obtained her description of the

individual.   Trooper Timms then selected suspects from the area based on

the complainant’s description. He compiled two photographic arrays, each

containing eight pictures. The first array contained a picture of a suspect,

Seth Annis.2 The second array contained a picture of Appellant.

        On October 30, 2012, Trooper Timms met the complainant at her

home and showed her the arrays. The complainant did not identify any of

the photographs in the first array.    According to Trooper Timms, he then

showed her the second array, at which time she pointed at Appellant’s

picture and stated, “Oh my God, that’s him. I am going to be sick.” Id. at

60. She became nauseous and went to the bathroom. When she returned,

she again identified Appellant as the assailant. She had not seen Appellant

before the incident.

        Trooper Timms filed a criminal complaint against Appellant on

November 19, 2012, and arrested him the following day, November 20th.

Appellant waived his Miranda3 rights and denied being involved in the

incident.     According to Trooper Timms, Appellant asked if there was


2
 On cross-examination, Trooper Timms stated Annis owned a red Mustang.
No evidence established that Appellant owned a red Mustang.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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fingerprint evidence and stated he “would get an alibi because he wasn’t

there.” Id. at 63.

      A jury trial was held on November 5 and 6, 2013. The Commonwealth

presented the testimony of the complainant, Trooper Urey, and Trooper

Timms recounting the above-stated events.       The Commonwealth did not

present any forensic evidence. Appellant, in turn, presented an alibi defense

and testified on his own behalf that he was working on the day of the

crimes. Two witnesses testified in corroboration of Appellant’s alibi, namely,

Andrew Coliny, Appellant’s girlfriend’s father, for whom he was working, and

the homeowner who hired Coliny to demolish her kitchen.         The jury, on

November 6, 2013, found Appellant guilty of the above-stated crimes and

related offenses.

      On November 18, 2013, the trial court sentenced Appellant to an

aggregate five to twelve years’ imprisonment.     Appellant did not file post-

sentence motions but timely filed a notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement.

      Appellant presents the following questions for review:

         WHETHER THE EVIDENCE WAS INSUFFICIENT TO FIND
         THE APPELLANT GUILTY BEYOND A REASON[A]BLE DOUBT
         OF   THE   CRIMINAL   CHARGES   WHEN   APPELLANT
         PRESENTED AN ALIBI DEFENSE?

         WHETHER   THE    PROSECUTION    MADE             IMPROPER
         STATEMENTS IN CLOSING ARGUMENT?

         WHETHER THE COURT ERR[ED] IN ALLOWING TROOPER
         UREY TO TESTIFY TO TROOPER’S REPORT WHEN DEFENSE


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         COUNSEL DID NOT RECEIVE THE REPORT PRIOR TO
         TRIAL?

Appellant’s Brief at 7.

      Appellant first claims the evidence was insufficient to sustain his

convictions because the complainant’s identification contradicted his alibi

evidence and, therefore, was unworthy of belief and unreliable. In support,

Appellant relies on Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super.

1973). Appellant’s Brief at 12-13. According to Appellant, no probability of

fact that he committed the crimes could be drawn from the evidence. Id. at

13. He thus requests that his convictions be reversed or, in the alternative,

that a new trial be granted. Id. at 15. No relief is due.

         The standard we apply in reviewing the sufficiency of
         evidence is whether, viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the factfinder to find every
         element of the crime beyond a reasonable doubt. In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for that of the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.         Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. . . . Moreover, in applying the
         above test, the entire record must be evaluated and all
         evidence actually received must be considered. Finally,
         the trier of fact while passing upon the credibility of
         witnesses and the weight of the evidence produced, is free
         to believe all, part or none of the evidence.

Commonwealth v. Jones, 954 A.2d 1194, 1196-97 (Pa. Super. 2008)

(citations omitted and punctuation omitted).


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        “An alibi is a defense that places the defendant at the relevant time in

a different place than the scene involved and so removed therefrom as to

render it impossible for him to be the guilty party.”      Commonwealth v.

Hawkins, 894 A.2d 716, 717 (Pa. 2006) (citation and punctation omitted).

The defense, if established, permits a jury to acquit the defendant if the

“alibi evidence, even if not wholly believed, raises a reasonable doubt of his

presence at the scene of the crime at the time of its commission and, thus,

of his guilt.” Id. at 718 (citation and punctuation omitted) (discussing jury

instruction regarding alibi defense).

        This Court has held that a complainant’s identification of the defendant

alone     provides   sufficient   evidence    to   rebut   an   alibi   defense.

Commonwealth v. Brison, 618 A.2d 420, 422-423 (Pa. Super. 1992).

Similarly, we have held that a positive identification by the complainant

provides sufficient basis to establish the identity of a defendant as the

perpetrator of the offenses charged.      Commonwealth v. Patterson, 940

A.2d 493, 502 (Pa. Super. 2007).

        As noted above, Appellant relies on our decision in Bennett.          In

Bennett, the defendant was found guilty of receiving stolen property, an

automobile, based on the following facts:

              [The d]efendant had been a passenger in the stolen
           automobile while it was being driven by one Harry Jones.
           Later [the defendant,] had been found driving the vehicle
           in Philadelphia with Jones as a passenger. Jones, after
           denials, confessed to the automobile’s theft and it was on



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        his testimony that the Commonwealth relied in its proof of
        charges against [the] defendant. . . .

           Jones (who had been contradictory with respect to his
        own perpetration of the larceny) sought to implicate the
        defendant by giving several wholly different, conflicting
        and inconsistent versions of when and how he had told her
        that the car had been in fact stolen by him. On a previous
        occasion Jones had denied he had ever conveyed to [the]
        defendant knowledge of the car’s theft. With each new
        version Jones would recant the previous one and protest
        that the newest version was in fact the true one.

Bennett, 303 A.2d at 220-21.

      On appeal, the defendant in Bennett challenged the sufficiency of the

evidence. This Court agreed that Jones’ testimony was “so inconsistent and

contradictory as to be insufficient to support a finding of her guilt” for

receiving stolen property. Id. at 220. We reasoned:

        This situation presented the jury not with a mere conflict
        or contradiction in testimony which was reasonably
        reconcilable by them, but a situation falling within the rule:
        ‘. . . a case should not go to the jury where the party
        having the burden offers testimony of a witness, or of
        various witnesses, which is so contradictory on the
        essential issues that any finding by the jury would be a
        mere guess . . . When the testimony is so contradictory
        on the basic issues as to make any verdict based thereon
        pure conjecture the jury should not be permitted to
        consider it[.]’

Id. at 221 (citation omitted). We thus reversed the defendant’s conviction.

Id.

      The   Pennsylvania    Supreme      Court,   in   Commonwealth      v.

Farquharson, 354 A.2d 545, 550 (Pa. 1976), subsequently limited




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Bennett.   The Farquharson Court discussed the appropriate standard of

review governing a challenge to the sufficiency of the evidence as follows:

            ‘On appellate review of a criminal conviction, we will
            not weigh the evidence and thereby substitute our
            judgment for that of the finder of fact. To do so
            would require an assessment of the credibility of the
            testimony and that is clearly not our function.’

            This concept, however, must be distinguished from an
         equally fundamental principle that a verdict of guilt may
         not be based upon surmise or conjecture. Following this
         principle, courts of this jurisdiction have recognized that
         where evidence offered to support a verdict of guilt is so
         unreliable and/or contradictory as to make any verdict
         based thereon pure conjecture, a jury may not be
         permitted to return such a finding.

Id. at 550 (citations omitted). The Court concluded, “The Bennett principle

is applicable only where the party having the burden of proof presents

testimony to    support that burden which is either so unreliable or

contradictory as to make any verdict based thereon obviously the result of

conjecture and not reason.” Id.

      Instantly, the principal issue at trial was whether Appellant was the

perpetrator of the crimes. The Commonwealth relied on the identification of

Appellant by the complainant.     The complainant testified she managed to

wrestle herself away from the perpetrator and see his face from a distance

of one foot.   N.T., 11/5/13, at 21-22.   She provided a description of the

assailant to Trooper Urey shortly after the incident. Id. at 48. One month

later, she later identified Appellant from a photo array without hesitation.




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Id. at 31, 60. She again identified Appellant at trial with no suggestion of

uncertainty or qualification. Id. at 32.

      Based on the foregoing, we discern no merit to Appellant’s argument

that the Commonwealth’s evidence was so contradictory on the issue of his

identification as the perpetrator that he was entitled to relief under Bennett.

See Farquharson, 354 A.2d at 550. Rather, in light of the complainant’s

unequivocal and unwavering identifications of Appellant, the jury was

entitled to reject Appellant’s alibi and mistaken identity theories and resolve

conflicts in the evidence.4 See Brison, 618 A.2d at 423. Thus, Appellant’s

challenge to the sufficiency of the evidence warrants no relief.

      Appellant also argues that his alibi evidence, which was corroborated

by two witnesses, should be entitled such greater weight than the

complainant’s identification testimony that the latter must be deemed

unreliable. We also note that the complainant’s identification implicating him


4
   We note that eyewitness identification is arguably one of the most
powerful, but least reliable, forms of evidence.              See generally
Commonwealth v. Walker, 92 A.3d 766, 779 (Pa. 2014). The hazards of
“inaccurate, but honestly held recollections” when making an identification
are well-documented. See id. We are mindful that the complainant here
was not familiar with Appellant, had but a brief opportunity to view the
assailant’s face during the attack, and identified Appellant from a
photographic array more than one month after the incident. However, we
are bound by our standard of review, which does not permit this Court “to
ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Commonwealth v. Ratsamy, 934 A.2d
1233, 1235 (Pa. 2007) (citation and punctuation omitted).




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in the crimes was not corroborated by any physical or forensic evidence. As

suggested above, however, these arguments challenge the weight, not the

sufficiency, of the evidence.    See Patterson, 940 A.2d at 502; see

generally Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)

(distinguishing standards relevant to reviewing sufficiency and weight of

evidence challenges).

     To the extent Appellant seeks a new trial based on the weight of the

evidence, our review reveals no indication that Appellant raised a weight of

the evidence claim in the trial court.   See Pa.R.Crim.P. 607(A) (requiring

“[a] claim that the verdict was against the weight of the evidence . . . be

raised with the trial judge in a motion for a new trial: (1) orally, on the

record, at any time before sentencing; (2) by written motion at any time

before sentencing; or (3) in a post-sentence motion”).            Moreover,

Appellant’s brief does not contain a statement of the place of raising such

issue. See Pa.R.A.P. 2117(c), 2119(e). Therefore, Appellant has waived his

weight of the evidence claim, and we are precluded from considering

whether he was entitled to a new trial.          See Commonwealth v.

Sherwood, 982 A.2d 483, 494 (Pa. 2009).

     Appellant’s next challenges the following portion of the prosecutor’s

closing argument:

           You also heard about DNA. This is not CSI Miami or
        New York. I like those shows the same as everyone else.
        They are entertaining, but that’s what they are, they are
        entertaining.


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            In real life, DNA evidence is much different than it is on
         television.    As you heard, I believe on redirect from
         Trooper Timms, these items weren’t sent to the lab. The
         lab typically doesn’t do DNA analysis when you already
         have a suspect identified. The primary purpose in real life
         of law enforcement to do DNA analysis is to try and to
         ascertain . . . .

N.T., 11/6/13, at 77. Appellant objected, noting the trial evidence did not

explain why DNA tests were not conducted. Id. The prosecutor responded

that Trooper Timms explained his decision not to seek DNA testing. Id. The

court overruled Appellant’s objection, stating the jury would determine

whether the argument was supported by the trial evidence. Id.

      Appellant presently asserts the trial court erred in overruling his

objection because the prosecutor’s argument lacked an adequate basis in

the trial evidence or legitimate inferences therefrom. Appellant’s Brief at 17-

18. He contends the prosecutor violated his professional responsibilities by

advancing an unsupported argument. Id. at 16-17. No relief is due.

      The principles governing our review are well settled:

         [T]he trial court is vested with discretion to grant a mistrial
         whenever the alleged prejudicial event may reasonably be
         said to deprive the defendant of a fair and impartial trial.
         In making its determination, the court must discern
         whether misconduct or prejudicial error actually occurred,
         and if so, . . . assess the degree of any resulting prejudice.
         Our review of the resulting order is constrained to
         determining whether the court abused its discretion.
         Judicial discretion requires action in conformity with [the]
         law on facts and circumstances before the trial court after
         hearing and consideration.         Consequently, the court
         abuses its discretion if, in resolving the issue for decision,



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        it misapplies the law or exercises its discretion in a manner
        lacking reason.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation

omitted).

     With respect to closing arguments, the Pennsylvania Supreme Court

has stated:

           A prosecutor may make fair comment on the admitted
        evidence and may provide fair rebuttal to defense
        arguments. Even an otherwise improper comment may be
        appropriate if it is in fair response to defense counsel’s
        remarks. Any challenge to a prosecutor’s comment must
        be evaluated in the context in which the comment was
        made.

Commonwealth v. Burno, 94 A.3d 956, 974 (Pa. 2014) (citation and

quotation marks omitted). Moreover,

        It is well settled that a prosecutor has considerable latitude
        during closing arguments and his arguments are fair if
        they are supported by the evidence or use inferences that
        can reasonably be derived from the evidence. Further,
        prosecutorial misconduct does not take place unless the
        unavoidable effect of the comments at issue was to
        prejudice the jurors by forming in their minds a fixed bias
        and hostility toward the defendant, thus impeding their
        ability to weigh the evidence objectively and render a true
        verdict. Prosecutorial misconduct is evaluated under a
        harmless error standard.

Judy, 978 A.2d at 1020 (citation omitted).

     After reviewing the trial transcript, we agree that the Commonwealth

did not present any evidence explaining why DNA tests were not performed.

Nevertheless, in the context of the closing arguments as a whole, the

prosecutor’s statement attempted to focus the jury’s attention upon the


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strength of the complainant’s identification and away from the lack of any

objective evidence corroborating the identification. Such an argument falls

within the bounds of zealous advocacy granted to the prosecutor and

responded to Appellant’s arguments emphasizing the absence of forensic

evidence.      See id. at 1020, 1022-23.        Moreover, even if we were to

conclude that the prosecutor’s misstatement of the record constituted

misconduct, we discern no basis to conclude the jury was incapable of

objectively weighing the evidence actually presented at trial. 5         See id. at

1020. Thus, no relief is due.

      Appellant lastly contends that the Commonwealth failed to disclose a

report prepared by Trooper Urey following his response to the complainant’s

911 call.     By way of background to this claim, Appellant, on January 14,

2013, filed a pretrial request for discovery and bill of particulars, seeking,

inter alia, “a copy of any police reports.” Appellant’s Req. for Disc. & Bill of

Particulars, 1/14/13, at ¶ 3. The Commonwealth filed its answer on March

6, 2013, and responded, “The entire police arrest report is not subject to

discovery pursuant to the Pennsylvania Rules of Criminal Procedure. To the

extent items in said police arrest report are discoverable and requested,

copies   of    the   relevant   requested   portions   are   attached.   .   .   .   .”

5
  We also note the trial court cautioned the jury that the arguments of
counsel were not evidence, and when overruling Appellant’s objection,
reminded the jury that it was responsible for determining whether the
evidence supported the prosecutor’s argument. N.T., 11/6/13, at 49, 77.




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Commonwealth’s Answer to Req. for Disc. & Bill of Particulars, 3/6/13, at ¶

3. Attached to the Commonwealth’s answer was a copy of a Pennsylvania

State Police Incident Report dated September 27, 2012, and signed by

Trooper Urey.      Although the copy of the incident report appeared

incomplete,6 Appellant did not file any further discovery motions.

      On the first day of trial, Trooper Urey testified on cross examination

that he prepared a report.      N.T., 11/5/13, at 52.   Counsel for Appellant

stated she did not have the report. Id. Following a sidebar conference that

was not recorded, the trial court overruled the objection.            Id. at 53

Appellant’s counsel then elicited Trooper Urey’s testimony that his report

contained the complainant’s description of the perpetrator as having a

strong body odor and a smell of alcohol. Id. Counsel concluded her cross-

examination of Trooper Urey but reserved her right to recall the trooper. At

the conclusion of the day, counsel received a copy of the report. Id. at 85.

      On the second day of trial, Appellant recalled Trooper Urey during the

defense’s case-in-chief.     Appellant asked the trooper three substantive

questions regarding “information that no vehicle was seen in the area.”

N.T., 11/6/13, at 44.      Trooper Urey responded he believed there was no

vehicle seen in the area and acknowledged that the “report sa[id] that there

was no vehicle in the area, just the description of the actor.” Id.

6
  For example, the narrative portion of Trooper Urey’s incident report began
with the incomplete phrase “vehicles in the area.” Incident Report, 9/27/12,
at 3.



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     It is unclear from the present record or Appellant’s arguments whether

Appellant’s challenge involves missing portions of Trooper Urey’s September

27th incident report or a separate, additional report.         Nevertheless,

Appellant contends he was unaware that Trooper Urey prepared a report and

the Commonwealth violated its continuing duty to disclose discovery

materials. Appellant’s Brief at 19. He concludes he is entitled to discharge

or a new trial. Id. We disagree.

     Pennsylvania Rule of Criminal Procedure 573 states:

           (A) Informal. Before any disclosure or discovery can
        be sought under these rules by either party, counsel for
        the parties shall make a good faith effort to resolve all
        questions of discovery, and to provide information required
        or requested under these rules as to which there is no
        dispute. When there are items requested by one party
        which the other party has refused to disclose, the
        demanding party may make appropriate motion. . . . .

           (B) Disclosure by the Commonwealth.

              (1) Mandatory. In all court cases, on request by the
           defendant, and subject to any protective order which
           the Commonwealth might obtain under this rule, the
           Commonwealth shall disclose to the defendant's
           attorney all of the following requested items or
           information, provided they are material to the instant
           case.    The Commonwealth shall, when applicable,
           permit the defendant's attorney to inspect and copy or
           photograph such items.

                  (a) Any evidence favorable to the accused that is
               material either to guilt or to punishment, and is
               within the possession or control of the attorney for
               the Commonwealth;

                  (b) any written confession or inculpatory
               statement, or the substance of any oral confession or


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               inculpatory statement, and the identity of the person
               to whom the confession or inculpatory statement
               was made that is in the possession or control of the
               attorney for the Commonwealth;

                  (c) the defendant's prior criminal record;

                  (d) the circumstances and results of any
               identification of the defendant by voice, photograph,
               or in-person identification;

                  (e) any results or reports of scientific tests, expert
               opinions, and written or recorded reports of
               polygraph examinations or other physical or mental
               examinations of the defendant that are within the
               possession or control of the attorney for the
               Commonwealth;

                  (f) any tangible objects, including documents,
               photographs,   fingerprints,  or   other  tangible
               evidence; and

                  (g) the transcripts and recordings of any
               electronic surveillance, and the authority by which
               the said transcripts and recordings were obtained.

               (2) Discretionary With the Court.

                  (a) In all court cases, except as otherwise
               provided in Rules 230 (Disclosure of Testimony
               Before Investigating Grand Jury) and 556.10
               (Secrecy; Disclosure), 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 that
               the request is reasonable:

                        (i)  the   names        and    addresses     of
                     eyewitnesses;

                        (ii) all written or recorded statements, and
                     substantially verbatim oral statements, of


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                     eyewitnesses the Commonwealth intends to
                     call at trial;

                        (iii) all written and recorded statements,
                     and substantially verbatim oral statements,
                     made      by   co-defendants,  and    by  co-
                     conspirators or accomplices, whether such
                     individuals have been charged or not; and

                        (iv)   any   other    evidence     specifically
                     identified by the defendant, provided the
                     defendant can additionally establish that its
                     disclosure would be in the interests of justice.

                                  *     *      *

            (D) Continuing Duty to Disclose. If, prior to or
         during trial, either party discovers additional evidence or
         material previously requested or ordered to be disclosed
         by it, which is subject to discovery or inspection under this
         rule, or the identity of an additional witness or witnesses,
         such party shall promptly notify the opposing party or the
         court of the additional evidence, material, or witness.

            (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, other than testimony of
         the defendant, or it may enter such other order as it
         deems just under the circumstances.

Pa.R.Crim.P. 573(A), (B)(1), (B)(2)(a), (D)-(E).

      Under Paragraph (E) of Rule 573, the trial court “possesses discretion

in fashioning an appropriate remedy for a violation of the rules of discovery.”

Commonwealth v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008) (en banc).

We review the trial court’s determination of a remedy for an abuse of

discretion, mindful of the general rule that “[a] continuance is appropriate


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where the undisclosed statement or other evidence is admissible and the

defendant’s only prejudice is surprise.” Id. (citation omitted).

      Instantly, Appellant does not describe the contents of the report that

was belatedly disclosed or demonstrate how the Commonwealth’s late

disclosure violated Rule 573. Thus, even assuming that the Commonwealth

violated a duty to disclose, Appellant has not established prejudice. See id.

Moreover, he does not challenge the trial court’s decision to grant disclosure

of the report and ensure Trooper Urey was available for further cross-

examination by the defense. Our own review of the record reveals no basis

to conclude that the trial court’s remedy constituted an abuse of discretion.

See id.   Accordingly, following our review of the record, Appellant is not

entitled to appellate relief from the belated disclosure of the report.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2015




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