J-S77007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JOHN ROSS KENT

                            Appellant                 No. 415 MDA 2016


           Appeal from the Judgment of Sentence February 18, 2016
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000839-2014


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 12, 2017

        Appellant, John Ross Kent, appeals from the judgment of sentence

entered in Centre County Court of Common Pleas, following his bench trial

convictions for three counts of criminal trespass, one count of stalking, and

fifteen counts of invasion of privacy.1 After careful review, we affirm.




____________________________________________


1
    18 Pa.C.S.A. §§ 3503(a)(1)(i), 2709.1(a)(2), 7507.1(a)(1), respectively.

Preliminarily, we note that subsections (b.1)(1)(iv) and (b.1)(2) of § 3503,
Criminal trespass, were recently declared unconstitutional in Leach v.
Commonwealth, 141 A.3d 426 (Pa. 2016) (holding that 18 Pa.C.S.A. §
3503(b.1)(1)(iv), (b.1)(2) violates the single-subject rule of Article III,
Section 3 of the Pennsylvania Constitution). However, we note the holding in
Leach does not affect our disposition in the instant case because Appellant
was sentenced under subsection (a)(1)(i).

___________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     The relevant facts and procedural history of this case are as follows.

G.B. (“Ms. B.”) met Appellant in August 2012 and began dating him. The

couple lived apart from one another, but often Appellant and Ms. B would

plan weekend visits at her home in Boalsburg, Pennsylvania. Appellant was

not permitted to simply show up at Ms. B’s home without her knowledge.

And when Appellant stayed at Ms. B’s home he would retire to the living

room. Ms. B indicated that she did not allow Appellant to enter her bedroom

because she kept that room a personal space and because her son was in

the home often.

     Ms. B and Appellant were an intimate couple and usually were

engaged in intimate activities in the living room, which had a front bay

window, where Appellant stayed. Appellant made an offer of proof that he

and Ms. B regularly engaged in “adventurous” intimacy in public places. For

example, Appellant submitted the couple had sexual intercourse on Moon

River in Canada, in the afternoon on the front of his boat while other boats

passed by, in Ms. B’s driveway at dusk, on a motorcycle where friends

caught them, in Appellant’s car and hot tub, and on Ms. B’s back deck.

     In the daylight hours of March 3, 2014, Ms. B and Appellant were

engaged in intimate activities in her living room. During the intimacy in a

state of full nudity and without Ms. B’s knowledge or consent, Ms. B noticed

that Appellant had recorded the moment on his phone. After Ms. B

confronted Appellant regarding the phone in his hand, Appellant admitted to


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recording the moment and told Ms. B he would delete it from his phone. Ms.

B became distraught, threw him, along with all of his personal belongings,

out of the house, and immediately ended the relationship. Ms. B did not

speak to Appellant and Appellant was not permitted to enter her house

following the incident.

      The next day, Ms. B contacted a local women’s clinic regarding the

events because she was concerned other images may have existed of which

she might not have been aware. A clinic representative put Ms. B in contact

with Detective Deidri Houck, who ultimately executed a search warrant to

seize Appellant’s phone. Detective Houck discovered that over seven

hundred photos and a few videos were taken on Appellant’s phone between

February 3, 2014, to March 14, 2014, that were related to Ms. B. Some of

the photos and videos were of Ms. B’s nude body; other pictures were of Ms.

B’s personal effects that Appellant would not have known existed without his

searching through Ms. B’s home to discover them.

      Some of the pictures depict private memorabilia of Ms. B’s deceased

infant child, her phone, driver’s license, social security card, son’s birth

certificate, sister’s will, personal emails and calendar, various passwords,

and trash, among other things. Some of these pictures were taken at various

times in the middle of the night while the couple was dating without her

knowledge. Others were taken after Ms. B ended the relationship, where

Appellant entered her property to take pictures of her through the front bay


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window while she was asleep in the living room, and where Appellant

separately entered her house without her permission to take pictures of

some of the above-listed items. On those occasions, Appellant entered the

house through her garage by entering a password she had previously given

him.

       After Ms. B discovered that Appellant took these pictures and videos,

she began checking her doors and windows, changed the password on her

garage, and placed security cameras in the house. Ms. B testified that the

discovery of Appellant’s pictures shocked her, and affected her daily life and

the safety she previously felt in her home.

       The Commonwealth charged Appellant with three counts of criminal

trespass, one count of stalking, and fifteen counts of invasion of privacy on

April 21, 2014. Appellant waived his preliminary hearing, requested a jury

trial, but later pled guilty to various charges. Thereafter, after retaining new

counsel, Appellant entered an oral motion to withdraw his guilty plea; the

court accepted Appellant’s motion.

       On   August   3,   2015,   Appellant   filed   a   motion   to   compel   the

Commonwealth to turn over Appellant’s phone so that Appellant’s expert

could do an independent forensic analysis of the phone. Following briefing

and argument on the motion to compel, the court entered an opinion and

order denying Appellant’s motion.




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      On October 13, 2015, the Commonwealth filed a motion to preclude

Appellant’s expert report and testimony, which included an opinion on

Appellant’s lack of dissemination of the photos and videos and the likelihood

of Ms. B’s consent regarding them, as irrelevant to any admissible evidence.

The Commonwealth argued the expert opinion involved evidence that did not

exist, alleging the phone would “likely” reveal text messages that could

“possibly” have been deleted and which “could have” proven her consent.

      On October 19, 2015, Appellant filed a request for a bill of particulars

nunc pro tunc, seeking additional facts from the Commonwealth that formed

the bases for Appellant’s stalking and invasion of privacy charges. On

October 26, 2015, Appellant also filed a petition for habeas corpus arguing

the Commonwealth failed to establish a prima facie case regarding the

stalking charge because Appellant did not repeatedly communicate with Ms.

B and regarding the invasion of privacy charge because she could not have

possessed a reasonable expectation of privacy when she was being intimate

with Appellant.

      At a hearing on the above motions, Appellant argued that the

Commonwealth did not establish a prima facie case for invasion of privacy

because Ms. B was not in a private setting when she was engaged in sexual

intimacy with Appellant. Appellant made an offer of proof regarding the

couple’s prior sexual history and subsequently made an oral motion in limine

to introduce it. Appellant also challenged the constitutionality of the invasion


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of privacy statute, arguing it should be void for vagueness on its face and as

applied to Appellant. The court denied Appellant’s habeas corpus petition

and request for a bill of particulars, and his motion in limine as irrelevant.

The court also disagreed with Appellant’s interpretation of the statute and

denied Appellant’s motion to declare it unconstitutional.

        In an opinion and order, the court granted the Commonwealth’s

motion to preclude Appellant’s expert testimony on the grounds that the

testimony would be irrelevant and would serve to confuse the jury because

the jury would speculate and assume that dissemination of the images did

occur,    when    Appellant     was    not     charged   with   any   crime   involving

dissemination.

        A bench trial was held on November 5, 2015, and the court found

Appellant guilty of the above-listed charges. The court later sentenced

Appellant at each count to an aggregate total of 36 months to 72 month’s

imprisonment, followed by 4 years of probation, and to pay a fine and the

costs of prosecution. The court also noted Appellant was not found to be a

sexually violent predator. Appellant filed a timely notice of appeal. The court

ordered Appellant to file a Rule 1925(b) concise statement of errors

complained of on appeal. Appellant timely complied.               In his first issue, 2

Appellant challenges the constitutionality of 18 Pa.C.S.A. § 7507.1,

____________________________________________


2
    For ease of disposition, we have rearranged Appellant’s issues.



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Invasion of privacy. Appellant argues § 7507.1 is void for vagueness

because it does not give an ordinary person notice of the forbidden conduct.

Appellant concedes that Pennsylvania courts examine whether statutes give

fair notice under an objective test. But he insists on a subjective standard

for his case. An objective standard, he maintains, is inappropriate under

these circumstances because he would not have “known,” as the statute’s

proscribed mens rea states, that he was prohibited from videoing Ms. B

while she was in a state of nudity and without her consent, because of the

couple’s prior sexual history. Appellant contends the phrase “in a place

where that person would have a reasonable expectation of privacy” should

likewise be reviewed under a subjective test. He reasons that he and Ms. B

were engaged in consensual intimate activities and, as a result, she could

not have possessed a reasonable expectation of privacy because she was not

alone.


     In the same vein, Appellant argues the statute is unconstitutionally

vague because it affords police unfettered discretion in making arrests.

Specifically, Appellant complains the statute fails to define or provide

examples of what constitutes “privacy.” Appellant maintains this uncertainty

surrounding the term “privacy” will lead police to determine what amounts

to an invasion of privacy on an ad hoc and subjective basis. Appellant

concludes that the statute is void for vagueness. We disagree.




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      The constitutionality of a statute is a question of law; therefore, the

scope of appellate review is plenary. See Commonwealth v. Moss, 852

A.2d 374, 379 (Pa. Super. 2004). “The constitutional validity of duly enacted

legislation is presumed. The party seeking to overcome the presumption of

validity must meet a formidable burden.” Commonwealth v. Haughwout,

837 A.2d 480, 487 (Pa. Super. 2003) (citing Commonwealth v. Means,

773 A.2d 143 (Pa. 2001)). “A statute will not be declared unconstitutional

unless it clearly, palpably, and plainly violates the Constitution; all doubts

are to be resolved in favor of a finding of constitutionality.” Commonwealth

v. Mayfield, 832 A.2d 418, 421 (Pa. 2003) (internal citations and quotation

marks omitted).

      “The void for vagueness doctrine, as extensively developed by the

United States Supreme Court, is a due process doctrine incorporating

notions of fair notice and warning.” Commonwealth v. Potts, 460 A.2d

1127, 1133 (Pa. Super. 1983). When an appellant raises a void for

vagueness challenge to a statute

      [t]he terms of a penal statute creating a new offense must be
      sufficiently explicit to inform those who are subject to it what
      conduct on their part will render them liable to its penalties . . . .
      A statute which either forbids or requires the doing of an act in
      terms so vague that [people] of common intelligence must
      necessarily guess at its meaning and differ as to its application
      violates the first essential of due process of law. The void for
      vagueness doctrine requires that a penal statute define the
      criminal offense with sufficient definiteness that ordinary people
      can understand what conduct is prohibited and in a manner that
      does not encourage arbitrary and discriminatory enforcement.


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      Due process is satisfied if the statute provides reasonable
      standards by which a person may gauge his future conduct.

Mayfield, 832 A.2d at 422 (internal citations and quotation marks omitted).

      In considering these requirements, both High Courts have looked
      to certain factors to discern whether a certain statute is
      impermissibly vague. For the most part, the Courts have looked
      at the statutory language itself, and have interpreted that
      language, to resolve the question of vagueness. In doing so,
      however, our Court has cautioned that a statute is not to be
      tested against paradigms of legislative draftsmanship, and thus,
      will not be declared unconstitutionally vague simply because the
      Legislature could have chosen clear and more precise language.
      ... The Courts have also looked to the legislative history and the
      purpose in enacting a statute in attempting to discern the
      constitutionality of the statute. Consistent with our prior
      decisions, as well as United States Supreme Court case law, we
      will first consider the statutory language employed by the
      General Assembly in determining whether Section 2506 is
      unconstitutionally vague.

Commonwealth v. Ludwig, 874 A.2d 623, 628–29 (Pa. 2005) (citations,

footnote and quotation marks omitted).

      The statute challenged here, as listed in the Pennsylvania Crimes

Code, defines invasion of privacy, in pertinent part, as follows:

      § 7507.1 Invasion of Privacy

            (a) Offense defined.—

            Except as set forth in subsection (d), a person commits the
            offense of invasion of privacy if he, for the purpose of
            arousing or gratifying the sexual desire of any person,
            knowingly does any of the following:

            (1) Views, photographs, videotapes, electronically depicts,
            films or otherwise records another person without that
            person's knowledge and consent while that person is in a
            state of full or partial nudity and is in a place where that
            person would have a reasonable expectation of privacy.

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      The crime described above consists of four principal elements: (i)

knowingly views, photographs, videotapes, electronically depicts, films or

otherwise records another person; (ii) without that person’s knowledge or

consent; (iii) while that person is in a state of full or partial nudity; and (iv)

that person in a place where he or she would have a reasonable expectation

of privacy. “It is sufficiently definite that ordinary people can understand

what conduct is prohibited, and is not so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its

application.” Mayfield, 832 A.2d at 423 (internal quotation marks and

citations omitted).

      Accordingly, we reject Appellant’s argument that § 7507.1 should be

reviewed under a subjective standard because such a request directly

contravenes the void for vagueness jurisprudence, which mandates an

objective standard. See, e.g., id., at 422; Commonwealth v. Mikulan,

470 A.2d 1339, 1342 (Pa. 1983); Commonwealth v. Heinbaugh, 354

A.2d 244, 246 (Pa. 1976); Commonwealth v. Kakhankham, 132 A.3d

986, 991 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016).

      Additionally,   the   trial   court   provided   the   following   analysis   of

Appellant’s void for vagueness argument:

      Appellant bases his constitutionality argument on the claim that
      an individual cannot have a “reasonable expectation of privacy”
      pursuant to Section 7507.1(e) when she is actively engaged in
      sexual intercourse with another individual. Appellant buttresses
      this claim with his contention that Section 7501.1 does not


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     contain a definition for the word “privacy” and that the common
     definition of the word precludes a conviction on the facts of this
     case. While Appellant is correct in the sense that Section 7507.1
     does not delineate a freestanding definition for “privacy,” Section
     7507.1(e) does clarify that a reasonable person disrobes in
     privacy where she is not concerned that her undressing is being
     viewed, photographed, or filmed by another. This clarification is
     accomplished through the inclusion of the prepositional phrase,
     “without being concerned that his [or her] undressing was being
     viewed, photographed or filmed by another.” The subject of the
     prepositional phrase is “privacy,” and the subject is modified to
     incorporate not “being viewed, photographed or filmed by
     another.” A victim’s “privacy” under Section 7507.1 is
     inextricable from the victim being in a place where she can
     undress without being viewed, photographed, or filmed by
     another. The Merriam-Webster Dictionary definition of “privacy”
     includes “the state of being away from public attention.” Thus,
     “privacy” under Section 7507.1 is recognized as an individual in
     the state of being away from public attention without being
     concerned that her undressing is being viewed, photographed, or
     filmed by another.

     Appellant also contends the [c]ourt’s refusal to accept
     Appellant’s    interpretation of Section 7507.1         precluded
     questioning of the victim about her sexual history with Appellant
     and Appellant’s argument that the victim had knowledge of
     Appellant’s recording and photographing of their sexual
     interactions. The [c]ourt found Appellant’s theory of the case to
     be irrelevant to the plain meaning of Section 7507.1. The statute
     requires the recording and photographing to be done “without
     that person’s knowledge and consent.” The inverse, and thus
     non-proscribed form of this requirement, is that the person
     knows and consents to the recording and photographing.
     Appellant attempts to fashion a zone between these two forms
     which would permit an individual to record and photograph his
     sexual interactions with another person without their consent,
     and then make the other person aware of the recordings and
     photographs so that the statute does not apply. This incongruous
     and perplexing interpretation by Appellant would, if adopted,
     result in invasions of privacy only occurring when a victim does
     not discover said invasions. The [c]ourt found the plain meaning
     of Section 7507.1 to be clear, and additionally that the
     legislature could not have intended for the statute to be the
     innocuous section Appellant alleges it to be.

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      Appellant subscribes to the erroneous logic that because the
      [c]ourt and Appellant have differing interpretations of Section
      7507.1, it must therefore be void for vagueness. An
      endorsement of this illogical notion would result in defendants
      being able to assert an incorrect interpretation of a statute and
      then claim the statute is void for vagueness when the [c]ourt
      applies the correct interpretation. The [c]ourt cannot endorse
      Appellant’s illogical position.

Trial Court Opinion, filed 4/11/16, at 3-5. We agree entirely with the trial

court’s cogent analysis.

      As applied to Appellant, § 7507.1 could not be any clearer. The record

shows that Appellant knowingly photographed and recorded Ms. B— without

her knowledge or consent while she was in a state of nudity in her home.

The record also indicates that Appellant and Ms. B were engaged in intimate

activities inside her home, where Ms. B would have possessed an eminently

reasonable expectation of privacy. See Commonwealth v. Flewellen, 380

A.2d 1217, 1220 (Pa. 1977) (“Upon closing the door of one’s home to the

outside world, a person may legitimately expect the highest degree of

privacy known to our society.”); Commonwealth v. Kean, 556 A.2d 374,

382 (Pa. Super. 1989) (“[A] citizen of this Commonwealth may maintain a

legitimate expectation of privacy in the home notwithstanding the fact that

the interior of the home is secretly videotaped by a guest.”); see also

United States v. Chadwick, 433 U.S. 1, 7, 97 S. Ct. 2476, 2481, 53 L. Ed.

2d 538 (1977), abrogated by California v. Acevedo, 500 U.S. 565, 111 S.




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Ct. 1982, 114 L. Ed. 2d 619 (1991).3 Appellant’s conduct is precisely what

the   legislature    intended    to   proscribe    when   it   enacted   the   statute.

Accordingly, § 7507.1 is not unconstitutionally vague.

       We next address Appellant’s second and third issues together.

Appellant argues the trial court impermissibly prohibited the introduction of

Appellant and Ms. B’s prior sexual history as irrelevant. Appellant posits that

evidence of the couple’s prior sexual history negates the mens rea of the

offense, and therefore, is indeed relevant because it tends to show that

Appellant believed Ms. B would not mind having their intimacy recorded

based on their prior public intimacy exhibitions. Appellant similarly contends

that the trial court impermissibly precluded the introduction of Appellant’s

expert opinion and report. Appellant submits the report is relevant because

it tends to show that no dissemination of the photos or videos occurred,

which Appellant insists rebuts an element of his stalking conviction. We

disagree.

       “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

2002) (quoting Commonwealth v. Stallworth, 781 A.2d 110, 117 (Pa.
____________________________________________


3
  Although this Court is not bound by fourth amendment precedent because
this case does not involve unreasonable search and seizures perpetrated by
the government, in this instance, we find some of the fundamental tenets of
doctrine persuasive.



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2001)).

     Relevance is the threshold for admissibility of evidence.
     Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).
     Pennsylvania Rule of Evidence 401 provides as follows:

          Rule 401. Test for Relevant Evidence

          Evidence is relevant if:

          (a) it has any tendency to make a fact more or less
          probable than it would be without the evidence; and

          (b) the fact is of consequence in determining the action.

     Pa.R.E. 401. Evidence is relevant if it logically tends to establish
     a material fact in the case, tends to make a fact at issue more or
     less probable, or supports a reasonable inference or presumption
     regarding a material fact. “All relevant evidence is admissible,
     except as otherwise provided by law. Evidence that is not
     relevant is not admissible.” Pa.R.E. 402. “The court may exclude
     relevant evidence if its probative value is outweighed by a
     danger of one or more of the following: unfair prejudice,
     confusing the issues, misleading the jury, undue delay, wasting
     time, or needlessly presenting cumulative evidence.” Pa.R.E.
     403.

     Pennsylvania Rule of Evidence 404(b) provides as follows:

          Rule 404. Character Evidence; Crimes or Other Acts

                                     *     *      *

          (b)   Crimes, Wrongs or Other Acts.

          (1) Prohibited Uses.       Evidence of a crime, wrong, or
          other act is not admissible to prove a person’s character in
          order to show that on a particular occasion the person
          acted in accordance with the character.

          (2) Permitted Uses.        This     evidence    may      be
          admissible for another purpose, such as proving motive,
          opportunity, intent, preparation, plan, knowledge, identity,
          absence of mistake, or lack of accident. In a criminal case

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           this evidence is admissible only if the probative value of
           the evidence outweighs its potential for unfair prejudice.

                                    *     *      *

           Pa.R.E. 404(b)(1)-(2).

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)

(some citations and quotation marks omitted).

      The Pennsylvania Crimes Code defines stalking, in pertinent part, as

follows:

      § 2709.1 Stalking

             (a) Offense defined.— A person commits the crime of
             stalking when the person[:]

                                    *     *      *

                (2) engages in a course of conduct or repeatedly
                communicates to another person under circumstances
                which demonstrate or communicate either an intent to
                place such other person in reasonable fear of bodily
                injury or to cause substantial emotional distress to such
                other person.

(emphasis added).

      Instantly, the trial court provided the following reasoning for its refusal

to admit Appellant and Ms. B’s prior sexual history and Appellant’s expert

opinion and report into evidence:

      Appellant contends the [c]ourt erred in precluding any mention
      of the prior sexual history between Appellant and [Ms. B]. The
      [c]ourt found any evidence regarding a prior sexual history
      between Appellant and [Ms. B] was irrelevant to the elements of
      the criminal charges against Appellant.




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      The prior sexual history between Appellant and [Ms. B] was
      irrelevant to whether Appellant knowingly recorded and
      photographed the victim, without the victim’s knowledge and
      consent, while the victim was in a state of full for partial nudity
      in a place where the victim would have a reasonable expectation
      of privacy. The existence of sexual relations between individuals
      is in no way a precursor or tacit sanctioning of the recording or
      photographing of those sexual interactions.

                                  *     *      *

      Appellant contends the [c]ourt erred in precluding any mention
      that the photographs and videos were not disseminated. The
      [c]ourt found any evidence regarding the dissemination or lack
      of dissemination of the photographs and videos was irrelevant to
      the elements of the criminal charges against Appellant.

      The Commonwealth never alleged Appellant disseminated the
      photographs and videos. Likewise, the Commonwealth did not
      charge Appellant with any crime involving dissemination. Since
      no element of any crime Appellant was charged with relates to
      dissemination, any evidence thereof is wholly irrelevant.

Trial Court Opinion, filed 4/11/16, at 8. We agree. The record supports the

trial court’s conclusion; therefore, we see no reason to disturb it. See

Drumheller, 808 A.2d at 904; Tyson, 119 A.3d at 358; Pa.R.E. 401.

      In his final issue, Appellant argues the trial court should have

compelled the Commonwealth, pursuant to Rule 573 of the Pennsylvania

Rules of Criminal Procedure, to make Appellant’s phone available to him for

additional forensic testing because the testing would have shown that the

photos and videos were not disseminated, which Appellant insists negates an

element of his stalking conviction. Specifically, Appellant complains that the

Commonwealth’s logical acquisition forensic analysis of the phone was an

insufficient data extraction compared to Appellant’s more thorough file

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system acquisition data extraction and forensic analysis. Appellant further

states the additional testing would have ensured that the jury would not

have convicted Appellant for some improper reason, namely that he shared

the pictures and videos with others. Based on the foregoing, Appellant

submits that he presented a “plausible reason” as to why additional testing

would be material for the defense, in order for the court to compel the

Commonwealth to turn the phone over to Appellant. Appellant concludes this

Court should reverse his convictions and sentences and grant him a new trial

for which he is permitted to obtain access to the phone to complete a full

forensic analysis. We disagree.

      Appellate courts generally review the grant or denial of discovery

requests for an abuse of discretion. See Commonwealth v. Williams, 732

A.2d 1167, 1175 n.5 (Pa. 1999).

      Pennsylvania Rule of Criminal Procedure 573(B)(1) provides, in

relevant part:

         Rule 573. Pretrial Discovery and Inspection

                                  *     *      *

         (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 … 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.

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        (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;

                                 *     *      *

        (f)  any    tangible    objects,    including    documents,
        photographs, fingerprints, or other tangible evidence[.]

                                 *     *      *

     While an appellant is not obligated to divulge his entire theory of the

case in order to obtain the requested testing, he nevertheless is required to

present some plausible reason to the trial court as to why the testing would

be material to his defense. See Commonwealth v. Briggs, 12 A.3d 291,

327 (Pa. 2011).

     Here, the trial court provided the following reasoning regarding its

denial of Appellant’s motion to compel:

     In this case, [Appellant] has failed to present to the [c]ourt a
     plausible reason as to why a further search of [Appellant’s]
     cellphone by [Appellant’s] expert would be material to
     [Appellant’s] defense. The evidence that [Appellant] alludes to is
     not in the possession of the Commonwealth because, by
     [Appellant’s] own admission, the evidence is not known to
     definitively exist. The [c]ourt understands [Appellant’s]
     contention that [Appellant] cannot know precisely the nature of
     the data that might still be undiscovered on [Appellant’s]
     cellphone, but [Appellant] has not provided the [c]ourt with any
     reason beyond an assertion that exculpatory evidence could
     possibly reside on the cellphone. The Commonwealth is under no
     duty to disclose to [Appellant] evidence that it does not possess
     and of which it is unaware, and the [c]ourt cannot compel the
     Commonwealth to disclose such evidence to [Appellant] without
     a plausible reason being presented.


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Trial Court Opinion, filed 9/15/15, at 2. The record supports the trial court’s

reasoning.

      We further observe the Commonwealth achieved a complete and

successful data extraction using a specific software program, which formed

the basis of the nineteen charges against Appellant. And the Commonwealth

duly provided Appellant with digital copies of all information recovered from

the phone. See Pa.R.Crim.P. 573(B)(1). Thus, Appellant failed to present a

plausible reason to the trial court as to why the additional testing would be

material to his defense. His request was speculative, cumulative in nature,

and unnecessary given the information Appellant already possessed. See

Briggs, 12 A.3d at 326. Accordingly, the trial court properly denied

Appellant’s motion to compel the discovery evidence.

      Judgment of sentence affirmed.

      Judge Platt joins the memorandum.

      Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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