J-S51021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY MICHELLE MULLER,                     :
                                               :
                       Appellant               :   No. 203 EDA 2018

           Appeal from the Judgment of Sentence December 14, 2017
    In the Court of Common Pleas of Pike County Criminal Division at No(s):
                           CP-52-CR-0000567-2016


BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 24, 2019

       Appellant Terry Michelle Muller appeals from the judgment of sentence

imposed after a jury found her guilty of unlawful restraint, false imprisonment,

endangering the welfare of children, simple assault, and harassment.1

Appellant claims that the trial court erred when overruling her objection to the

Commonwealth’s late disclosure of text messages and videos recovered from

her cellphone. We affirm.

       Because the parties are familiar with the facts giving rise to Appellant’s

convictions, we do not restate them here.            It suffices to note that an

investigation began when Appellant’s adopted daughter (Complainant) ran

away from home on January 20, 2015. Complainant, who was thirteen years

____________________________________________


1 18 Pa.C.S. §§ 2902(c)(1), 2903(c), 4304(a)(1), 2701(a)(1), 2701(a)(3),
2709(a)(1), and 2709(a)(3), respectively.
J-S51021-18



old at that time, was found the following morning and reported that Appellant

and her husband (Codefendant) mistreated her.2

       On August 2, 2016, Appellant was charged with offenses related to her

mistreatment of Complainant, and on August 5, 2016, was taken into custody.

Appellant remained in custody until November 2017, when she and

Codefendant proceeded to a joint jury trial.

       We summarize the trial record relevant to this appeal. At the end of

testimony on the second day of trial, Appellant’s counsel objected to the

Commonwealth calling a witness to testify about an extraction of data from

Appellant’s phone. N.T., 11/16/17, at 118. Appellant’s counsel noted that an

investigator had downloaded the entire contents of Appellant’s phone to a

flash drive, but only printed out a “six or seven-line text message from the

thousands that were in there.” Id.

       The following morning, the trial court held a conference with counsel.

See N.T., 11/17/17, at 5-15.           During the conference, the Commonwealth

explained that the Pennsylvania State Police initially seized Appellant’s phone

on February 3, 2016, when executing a search warrant.           An investigator

extracted the contents of Appellant’s phone to a flash drive and then returned



____________________________________________


2 Codefendant’s appeal is considered in a companion decision at 558 EDA
2018, J-S51022-18. A more complete summary of the trial evidence is set
forth in that decision.




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Appellant’s phone to Codefendant on February 10, 2016.3 The Commonwealth

asserted that it was entitled to admit the entire contents of Appellant’s phone

because the Appellant and Codefendant were in actual possession of

Appellant’s phone.

       Appellant’s counsel responded that Appellant and Codefendant lost

Appellant’s phone when their home was sold at a tax sale and noted that

criminal charges against her were not filed until August of 2016. Appellant’s

counsel emphasized that the defense requested discovery, and that in

response, the Commonwealth provided them with two text messages found

on Appellant’s phone. Appellant’s counsel asserted that the Commonwealth’s

failure to provide information about the remaining contents of Appellant’s

phone violated its duty to disclose material information before trial.

       The Commonwealth presented three arguments in support of its proffer.

First, the Commonwealth asserted that because Appellant had equal access to

the phone, it was under no obligation to disclose the entire contents of

Appellant’s phone or identify all of the materials it intended to use at trial.4
____________________________________________


3 The “Lantern System” was used to extract all of the data from Appellant’s
phone. The Lantern System also produced a report of the data recovered from
Appellant’s phone. The contents of Appellant’s phone and the accompanying
report were placed onto a flash drive. See N.T., 11/17/17, at 18-20. The
flash drive was included in the record transmitted to this Court.

4 The Commonwealth cited Commonwealth v. Maldonodo, 173 A.3d 769
(Pa. Super. 2017) (en banc), to support its arguments based on “equal
access.”




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Second, the Commonwealth suggested that Appellant was aware that the

Pennsylvania State Police extracted the contents of her phone, but did not file

a motion requesting copies of the extracted data. Third, the Commonwealth

questioned Appellant’s assertions that Appellant lost her phone, noting, in

part, that Appellant’s counsel used photographs from Appellant’s phone during

cross-examination of the Commonwealth’s witnesses.5

       The trial court overruled Appellant’s objections, and the Commonwealth

presented testimony regarding the entire contents of Appellant’s phone and

an extraction report. The Commonwealth moved into evidence the flash drive

containing a copy of the entire contents of Appellant’s phone as Exhibit 21.

Additionally,    the   Commonwealth            played   nine   videos   recovered   from

Appellant’s phone during its case-in-chief and used some of the videos during

its closing argument.6
____________________________________________


5  Appellant responded that the photographs she used during cross-
examination were produced and preserved for a prior dependency proceeding
involving Complainant.

6  Our review reveals that the videos documented Appellant verbally
disciplining Complainant in a harsh tone. Two of the videos show Complainant
eating ramen noodles with her fingers while Appellant is heard talking to
Complainant. In addition to playing the videos during its case-in-chief, the
Commonwealth replayed some of the videos during its closing arguments.
Appellant did not object to the specific publication or testimony regarding any
of the videos or the Commonwealth’s use of the videos at trial, and has not
identified the specific portions the Commonwealth played at trial.

The record does not indicate whether the Commonwealth provided Appellant
with copies of the flash drive, the extraction report, or the specific videos
before presenting them at trial.



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       Appellant and Codefendant testified in their own defense. They denied

abusing, mistreating, or depriving Complainant of any necessities or comforts.

They admitted placing restrictions on Complainant, but asserted that those

restrictions were necessary in light of Complainant’s mental health and

behavioral issues.7       Appellant’s biological children also testified for the

defense.

       On November 20, 2017, the jury found Appellant guilty of all charges.

On December 14, 2017, the trial court sentenced Appellant to an aggregate

term of 68 to 156 months’ imprisonment.

       Appellant timely filed a notice of appeal and complied with the trial

court’s order to submit a Pa.R.A.P. 1925(b) statement. The trial court filed a

Rule 1925(a) opinion addressing its decision to admit the text messages and

videos as follows:

       At trial, Appellant objected, essentially in the form of a motion in
       limine, to the Commonwealth’s introduction of certain specific text
       messages and of portions of videos, featuring Appellant and
       [Complainant], obtained from . . . Appellant’s cell phone. The cell
       phone was seized pursuant to a search warrant executed by the
       state police. Detective Christian Robinson testified that he was
       contacted by Corporal Smith to run a forensic extraction on
       Appellant’s cell phone. He also testified as to how the data was
       obtained from Appellant's cell phone using the Lantern software
       system. He testified that the extraction report was performed on
       February 8, 2016. He testified that the extraction process would

____________________________________________



7 Appellant claimed that a therapist suggested that she take videos to show
Complainant’s defiant and aggressive demeanor, because Complainant did not
display those traits during therapy sessions. See N.T., 11/20/17, at 21.
Appellant stated that she showed the videos to the therapist. Id.

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     have no effect on or alter the contents of the cell phone in any
     way. He testified that the contents of the reports generated by the
     Lantern software system would be an exact replica of the contents
     of the cell phone. He testified that after he had completed the
     forensic extraction, he returned the cell phone in its original state
     to Corporal Smith. Finally, he testified that he copied the reports
     generated by the Lantern software system in their entirety onto
     the flash drive used by the Commonwealth at trial. The cell phone
     was returned to [Codefendant] on February 10, 2016.

     Appellant argues on appeal that the Commonwealth should have
     been precluded from introducing the entire contents of the cell
     phone into evidence at trial because it did not provide the data to
     Appellant during discovery. At trial, the Commonwealth argued
     that . . . Appellant was and is still actually in possession of the
     cell phone and therefore, its contents were admissible. Appellant
     argued that she has not possessed that cell phone since her arrest
     on August 5, 2016. Appellant has been incarcerated since that
     time, and her home has since been sold at tax sale. Appellant
     further argued that, since criminal charges were not filed until
     August 5, 2016, she was not on notice of pending charges or the
     obligation to preserve any relevant information.

     In Brady v. Maryland, the United States Supreme Court held
     that “the suppression by the prosecution of evidence favorable to
     an accused upon request violates due process where the evidence
     is material either to guilt or to punishment, irrespective of the
     good faith or bad faith of the prosecution.” 373 U.S. 83, 87
     (1963). There are three components Brady violation: 1) the
     evidence at issue must be favorable to the accused either because
     it is exculpatory or it is impeaching, 2) the evidence must have
     been suppressed by the State, either willfully or inadvertently, and
     3) prejudice must have ensued.

     The Commonwealth has no duty to provide evidence in a form that
     the defendant demands for the convenience of the defense.
     Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super.
     2015). “If the Commonwealth is secure from a post-trial Brady
     challenge on the grounds that the evidence was disclosed and
     accessible to defense counsel, it cannot simultaneously be
     precluded from entering portions of that evidence due to sheer
     speculation that counsel, despite that equal access, would
     presumptively fail to examine that material.” [Maldonodo, 173
     A.3d at 783-84 (footnote omitted)]. . . .


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      The thumb drive contained the entire contents of Appellant’s cell
      phone; therefore, when the phone was returned to [Codefendant]
      by the state police on February 10, 2016, the evidence was equally
      available to Appellant. The evidence was no longer in the
      “exclusive control” of the Commonwealth. This is not an issue of
      the Commonwealth’s constitutional duty of disclosure. It was
      known to Appellant that the Commonwealth had the entire
      contents of Appellant[’s] cell phone well before trial commenced.
      The cell phone was in Appellant[’s] possession from February 10,
      2016 until August 5, 2016.

      During trial, the Commonwealth noted that discovery was
      provided to Appellant on January 24, 2017. Appellant did not file
      a motion to compel or specifically request that the Commonwealth
      disclose the extraction report and/or the entire contents of the
      thumb drive. Furthermore, based on Detective [Christian]
      Robinson’s testimony as to the extraction process, the contents of
      the cell phone were not altered in any way before it was returned
      to [Codefendant]. [Codefendant] himself picked up the cell phone
      from the state police, and therefore, the evidence was disclosed
      and accessible to Appellant and counsel.

      Once the Commonwealth had put the entire contents of the thumb
      drive into evidence, Appellant was free to display other text
      messages and play other videos and/or parts of videos previously
      published by the Commonwealth for the jury’s consideration.

Trial Ct. Op., 3/13/18, at 3-5.

      Appellant raises the following issues on appeal:

      [1]. The trial court abused its discretion by allowing into evidence
      the contents of a flash drive holding the entire contents of the
      Appellant’s cell phone, consisting of thousands of text messages,
      photographs, and video, on the Commonwealth’s assertion that
      the Appellant had access to the contents of the cell phone, over
      the Appellant’s objection, without conducting a fact-finding
      hearing to determine the truth of the Commonwealth’s assertion.

      [2]. The failure of the trial court to determine the facts as to
      whether the Appellant did have access to her cell phone after the
      commencement of this prosecution before ruling on Appellant’s
      objection to the introduction of undisclosed evidence was an abuse
      of discretion as the trial court had no factual basis on which to
      make its ruling.

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Appellant’s Brief at 10. Because Appellant’s issues are closely related, we

address them together.

      Appellant    argues     that   under    Pa.R.Crim.P.    573(B)(1),     the

Commonwealth had a mandatory obligation to disclose the entire contents of

Appellant’s phone once Appellant filed a general request for discovery. Id. at

17-18. According to Appellant, the videos were material. Appellant notes that

the Commonwealth, during trial and closing argument, “selected and played

for the jury nine videos . . . carefully selected from the many” contained on

the phone.    Id. at 17.    Appellant claims that because the Commonwealth

disclosed two text messages in response to her request for discovery, the

Commonwealth implied that the remaining data on Appellant’s phone was not

material. Id. at 17.

      Appellant also asserts that the trial court erred in accepting the

Commonwealth’s arguments in support of its proffer.            First, Appellant

contends there were insufficient facts for the trial court to determine that she

had equal access to the contents of the phone.          Id. at 18.    Appellant

emphasizes that she lost the phone.          Second, Appellant disputes the

Commonwealth’s suggestion that Appellant’s counsel should have requested

copies of the information recovered from the phone.          Id. at 19.    Third,

Appellant argues that the Commonwealth misled the trial court into believing

she still had the phone. Id. at 20-21.

      As to prejudice, Appellant notes that “[t]he videos were more in the

nature of demeanor evidence than substantive evidence, in that they showed

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[her] in a poor light, angry and raising her voice at [Complainant], rather than

establishing or corroborating any of the elements of the crimes charged.” Id.

at 21.    Appellant contends that the videos were a significant part of trial

because she elected to testify and her credibility was at issue. Id. Appellant

adds that the late disclosure of the videos prevented her from developing a

defense and presenting evidence in response to the videos.8 Id. at 22.

       In sum, Appellant contends that the Commonwealth acted in bad faith

when it failed to disclose the entire contents of Appellant’s phone before trial.

Appellant, therefore, claims that the trial court should have excluded the

contents of her phone as a sanction for the Commonwealth’s discovery

violation. Id. at 20.

       “Decisions involving discovery matters are within the sound discretion

of the trial court and will not be overturned absent an abuse of that discretion.”

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation

and quotation marks omitted), appeal denied, 189 A.3d 986 (Pa. 2018). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.”             Id. (citation and quotation marks

omitted).



____________________________________________


8Appellant does not raise any arguments that the presentation of the text
messages resulted in prejudice.

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     The purpose of the discovery rules is to prevent a trial by ambush that

violates a defendant’s right to due process. Commonwealth v. Ulen, 650

A.2d 416, 419 (Pa. 1994) (discussing the prior version of Pa.R.Crim.P. 573).

Pennsylvania Rule of Criminal Procedure 573 provides, in relevant, part:

     (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;

                                  *     *      *

           (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; [and]

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

                                  *     *      *

         (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

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            preparation of the defense, and that the request is
            reasonable:

                                   *     *      *

               (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.

                                   *    *       *

      (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(B)(1)(a)(e)-(f), (2)(a)(iv), (E).

      The duties to disclose information imposed by Brady and Rule 573 are

overlapping, but they are not identical. See Maldonodo, 173 A.3d at 774;

see also Commonwealth v. Sullivan, 820 A.2d 795, 802-03 (Pa. Super.

2003).   The focus of Brady is the prompt disclosure of evidence that is

favorable to the defense, which is incorporated in Rule 573(B)(1)(a). Rule

573 is broader to the extent it requires disclosure of inculpatory information.

See Sullivan, 820 A.2d at 803-04.

      Nevertheless, this Court has often analyzed claims involving Rule 573

using principles from Brady. Id. For example, in the context of Brady, it is

well settled that “no Brady violation occurs where the parties had equal access

to the information or if the defendant knew or could have uncovered such

evidence with reasonable diligence.” Commonwealth v. Morris, 822 A.2d


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684, 696 (Pa. 2003) (citation omitted). In the context of Rule 573, this Court

has also noted: “Where evidence is equally accessible to both the prosecution

and the defense, the latter cannot employ [the discovery rules] against the

Commonwealth.” See Santos, 176 A.3d at 883 (citations omitted).

       Furthermore, Rule 573 does not require the Commonwealth to divulge

its trial tactics or how it may use certain information, and defense counsel has

a duty to investigate available information for possible evidence.          See

Maldonodo, 173 A.3d at 783-84; Commonwealth v. Monahan, 549 A.2d

231, 235 (Pa. Super. 1988). Similarly, Rule 573 does not entitle a defendant

to information in a form most helpful or convenient to the defendants. See

Maldonodo, 173 A.3d at 783; Robinson, 122 A.3d at 373-74. Nevertheless,

courts have cautioned that “[b]ecause we are dealing with an inevitably

imprecise standard [regarding materiality], and because the significance of an

item of evidence can seldom be predicted accurately until the entire record is

complete, the prudent prosecutor will resolve doubtful questions in favor of

disclosure.” Maldonodo, 173 A.3d at 781-82 (citation omitted).

       Even if the Commonwealth violates the disclosure requirements of Rule

573,

       [t]he trial court has broad discretion in choosing the appropriate
       remedy for a discovery violation. . . . A defendant seeking relief
       from a discovery violation must demonstrate prejudice.           A
       violation of discovery “does not automatically entitle [an]
       appellant to a new trial.” Rather, [the defendant] must
       demonstrate how a more timely disclosure would have affected
       his trial strategy or how he was otherwise prejudiced by the
       alleged late disclosure.


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Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citations

omitted). This Court has suggested that in most cases, “[a] continuance is

appropriate where the undisclosed statement or other evidence is admissible

and the defendant’s only prejudice is surprise.” Commonwealth v. Smith,

955 A.2d 391, 395 (Pa. Super. 2008) (en banc) (citation omitted).

      Instantly, as noted by the trial court, Appellant was aware that the

Pennsylvania State Police seized and analyzed her phone, and that the

Commonwealth recovered evidence from her phone. Additionally, the record

supports the trial court’s findings that Appellant’s phone was returned to

Codefendant before criminal charges were filed, and that Appellant was aware

that her phone could have contained unfavorable evidence.

      Yet, there is also no dispute that Appellant requested discovery after the

charges were filed, and that the Commonwealth had in its possession the

Lantern report and the entire contents of Appellant’s phone. In response to

Appellant’s request for discovery, the Commonwealth provided copies of two

text messages that it extracted from Appellant’s phone. The record contains

no indication that the Commonwealth provided Appellant with a copy of the

extraction report or a copy of the flash drive in response to Appellant’s request

for pretrial discovery, or before seeking admission of the contents of

Appellant’s phone at trial.

      Under these circumstances, we do not read Maldonodo and Robinson

as broadly as the Commonwealth and the trial court.         In Maldonado and

Robinson, the Commonwealth disclosed information before trial, i.e.,

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recordings of the defendant’s Spanish language prison calls in Maldonodo,

and a recording of a victim’s interview in Robinson. See Maldonodo, 173

A.3d at 771; Robinson, 122 A.3d at 373. In Maldonodo, the Commonwealth

specifically identified two phone calls it believed were inculpatory, but

disclosed all of the recordings the defendant’s 466 prison phone calls.

Maldonodo, 173 A.3d at 771-72. The issue in those cases was whether the

Commonwealth had duties to provide the defense with additional information,

such as a certified translations of the prison calls or a transcript of the video

recording. See Maldonodo, 173 A.3d at 781; Robinson, 122 A.3d at 373.

       This Court, in both Maldonodo and Robinson, reversed the trial court’s

pretrial ruling precluding the Commonwealth from presenting evidence based

on the failure to provide additional information. See Maldonodo, 173 A.3d

at 771; Robinson, 122 A.3d at 369. In so doing, this Court noted that the

Commonwealth had no duty to assist the defendant in finding evidence

favorable to the defendant when the Commonwealth provided the information

to the defense. See Maldonodo, 173 A.3d at 783; Robinson, 122 A.3d at

371.

       The present case, however, raises different issues and facts than those

addressed in Maldonodo and Robinson.              First, the information here

contained evidence that was unfavorable to the defense.            Second, the

Commonwealth did not provide the information in its possession during

discovery. Indeed, there is no indication in the record that the Commonwealth

even provided Appellant’s counsel with a courtesy copy of the flash drive when

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it moved the contents of Appellant’s phone into evidence.          Third, unlike

Maldonodo, the Commonwealth initially indicated that that it intended to use

two text messages at trial, but then moved the entire contents of Appellant’s

phone into evidence.

       Therefore, we do not find Maldonodo and Robinson to be controlling

authorities in this case. Accordingly, we do not agree with the trial court’s

legal reasons for excusing the Commonwealth of any duty to disclose

unfavorable evidence under Rule 573.

       Even if the Commonwealth violated Rule 573, however, Appellant’s

claims of surprise and prejudice do not merit relief. See Brown, 200 A.3d at

993; accord Smith, 955 A.2d at 395. The fact that Appellant was, or should

have been, aware of the additional unfavorable videos on the phone belies

Appellant’s claim of surprise.       Moreover, Appellant did not request a

continuance to review the additional evidence, and she explained the videos

during her own testimony. Cf. Smith, 955 A.2d at 395. Lastly, although

Appellant suggests that that she could have more effectively rebutted the

videos if the Commonwealth disclosed the evidence in a more timely fashion,

Appellant does not establish that her trial preparation or strategy would have

been    different   had   the   information    been   disclosed.   Under   these

circumstances, we conclude Appellant has not established that that the

admission of the entire contents of her phone constituted reversible error

under Rule 573. See Santos, 176 A.3d at 882.

       Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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