J-A30010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DARNELL GRAHAM

                            Appellee                  No. 1304 EDA 2013


                   Appeal from the Order Entered April 4, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012933-2012


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 08, 2016

        The Commonwealth appeals from the April 4, 2013 order granting

Appellee, Darnell Graham’s motion in limine precluding the Commonwealth

from presenting fingerprint evidence after its failure to comply with a

discovery deadline.1 After careful review, we reverse and remand for further

proceedings.

        The relevant procedural history of this case has been summarized by

the trial court, as follows.

                   On February 13, 2013, defense counsel
              requested a continuance for further investigation,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  The Commonwealth has certified that the preclusion of the fingerprint
evidence will substantially handicap or terminate its prosecution. Pa.R.A.P.
311(d).
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          and requested discovery from the Commonwealth’s
          fingerprint testing results from the scene of the
          crime. The [trial c]ourt ordered the Commonwealth
          to provide mandatory fingerprint discovery to
          [Appellee], and ruled the next trial listing as “must
          be tried both.” At the next trial listing, on April 4,
          2013, [d]efense counsel raised a [m]otion in [l]imine
          to preclude fingerprint evidence and the testimony of
          any expert witness who would testify based on their
          review of any fingerprint evidence discovered at the
          scene of the crime.

                 Defense counsel asserted he did not receive
          any fingerprint discovery from the Commonwealth
          until the day before trial, April 3, 2013, at 4:24 p.m.
          Defense counsel received discovery in the form of a
          twenty (20) page facsimile, containing some of the
          finger print [sic] evidence. The facsimile contained
          four print cards of fingerprints, though the
          Commonwealth lifted ten print cards at the scene.
          The four fingerprints defense counsel received were
          matched by the Commonwealth to the [Appellee],
          and the six other fingerprints were not. The print
          cards contained in the facsimile were not of sufficient
          quality to be examined by an expert witness for
          [Appellee].      At the bar of the court, the
          Commonwealth passed higher quality print cards to
          defense counsel for the four prints contained in the
          facsimile. The Commonwealth’s case contained no
          eye witnesses or physical evidence, beyond the
          fingerprints. The fingerprint report was generated
          on April 10, 2012, almost exactly one year prior to
          the Commonwealth passing the discovery to defense
          counsel.

                The Commonwealth asserted the fingerprints
          were not requested until February 13, 2013. The
          Commonwealth      asserted    they   requested   the
          evidence from the crime lab via fax on February 15,
          2013, but didn’t receive a response because the fax
          went to the wrong person.        The Commonwealth
          requested the fingerprints again on March 20, 2013.




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Trial Court Opinion, 2/5/15, at 1-2 (citations omitted). On May 1, 2013, the

Commonwealth filed a timely notice of appeal.2

       On appeal, Appellant raises the following issue for our review.

              Did the [trial] court abuse its discretion by barring
              the Commonwealth from presenting fingerprint
              evidence, which was essential to its case, as a
              sanction for purportedly failing to meet a discovery
              deadline?

Commonwealth’s Brief at 4.

       We are guided by the following standard of review.

              In evaluating the denial or grant of a motion in
              limine, our standard of review is well-settled. When
              ruling on a trial court’s decision to grant or deny a
              motion in limine, we apply an evidentiary abuse of
              discretion standard of review. A trial court has broad
              discretion to determine whether evidence is
              admissible, and a trial court’s ruling regarding the
              admission of evidence will not be disturbed on appeal
              unless       that     ruling     reflects     manifest
              unreasonableness, or partiality, prejudice, bias, or
              ill-will, or such lack of support to be clearly
              erroneous. If the evidentiary question is purely one
              of law, our review is plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(citations omitted).


____________________________________________


2
   The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925. We note, the trial court did not complete
its opinion until February 5, 2015; therefore, the record in this matter was
not transmitted to this Court until that date. The record does not explain
the almost two-year delay from the date the notice of appeal was filed until
the trial court opinion was filed.



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

that the Commonwealth must turn over fingerprint evidence. Pa.R.Crim.P.

573(B)(1)(f). Rule 573(E) provides the following sanctions for the failure to

do so.

           (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(E).

     Additionally, regarding a sanction dismissing charges or precluding

admission of evidence that functionally will terminate or substantially

handicap the prosecution, we have held as follows.

                 Although not expressly included in the list of
           remedies [of Rule 573E], a trial court does have the
           discretion to dismiss the charges, but only for the
           most      extreme    and     egregious     violations.
           Commonwealth v. Burke, 781 A.2d 1136, 1144
           ([Pa.] 2001) (quoting Commonwealth v. Shaffer,
           712 A.2d 749, 752 ([Pa.] 1998)) (“... the sanction of
           dismissal of charges should be utilized in only the
           most blatant cases. Given the public policy goal of
           protecting the public from criminal conduct, a trial
           court should consider dismissal of charges where the
           actions of the Commonwealth are egregious and
           where demonstrable prejudice will be suffered by the
           defendant if the charges are not dismissed.”);
           [Commonwealth v.] Smith, 955 A.2d [391,] at
           395 [(Pa. Super. 2008)].




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                   While the trial court did not explicitly dismiss
            any of the charges against the defendants, the
            Commonwealth certified, in good faith, that the trial
            court’s order precluding the testimony of the 34
            witnesses “will terminate or substantially handicap
            the prosecution” pursuant to Pa.R.A.P. 311(d). This
            certification is “not contestable.” Commonwealth v.
            Boczkowski, 846 A.2d 75, 87 ([Pa.] 2004); see
            also Smith, [supra] at 394 (“Although the trial
            court did not dismiss the charges [...] its equivalent
            was accomplished when the Commonwealth declined
            to proceed to trial without the testimony of the
            officers and suffered a dismissal of the charges as a
            result of failing to prosecute prior to the resolution of
            the issue on appeal.”).

Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa. Super. 2011)

(some citations and parallel citations omitted). In Hemingway, this Court

concluded, “[b]ased upon the specific facts of this case and the rationale

behind the February 27 order, we are constrained to agree with the

Commonwealth that this sanction yielded too extreme a result.”          Id.

      Instantly, the Commonwealth argues that its “production of the

evidence [Appellee] requested, prior to trial, complied with the [trial] court’s

order.”   Commonwealth’s Brief at 12.       Further, the Commonwealth notes,

“even assuming there were [sic] a violation, the [trial] court’s ruling was

contrary to controlling precedent, which has held that terminating a

prosecution is ‘far too drastic’ a sanction for a discovery violation … absen[t]

of both deliberate, bad faith misconduct and prejudice to the defense.” Id.

Appellee counters that the trial court’s February 13, 2013 discovery order




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stated that the case must be tried on April 4, 2013, and therefore, a

continuance would be a violation of that order. Appellee’s Brief at 12.

      At the April 4, 2013 hearing, the Commonwealth testified as follows.

            There was on 2/13, they were requested. They were
            ordered on 2/15. On the date 2/15, we FAXed over
            a request for the latent print cards from this case.
            And Your Honor, I did not receive any back. On
            3/20, I called them and found out they never
            received the FAX, it was sent to the wrong person,
            which was an error by our office.

                   Your Honor[,] on 3/20, I sent over another
            FAX. Once I didn’t receive it, I called them again
            and on, I believe it was two days ago, stated they
            were going to hand deliver them to my office and
            drop them off. I went and I grabbed them and
            FAX[ed] them over to the PD Office. Your Honor, I
            understand it is extremely late and a violation of
            your order; however, it was a mistake.        [The
            Commonwealth] was diligent in attempting to get
            them; however, a mistake was made, Your Honor,
            that’s why they were not here earlier.

N.T., 4/4/13, at 6-7.

      Herein, we are guided by Hemingway and past precedent of this

Court holding that the equivalent of dismissal of charges is too drastic a

result proportional to the Commonwealth’s transgression. Prior to granting

Appellee’s motion, the trial court acknowledged that following the February

13, 2013 order, the Commonwealth made a timely request on February 15,

2013. See N.T., 4/4/13, at 9 (the trial court stated “Well, I don’t think what

you’re telling me isn’t true.    I’m looking, you did make a request on

February 15th. Okay. I think that was diligent[]”). The trial court went on


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to note 30 days passed before the second request, and that the cards were

not provided to the Commonwealth until two days prior to trial, and to

Appellee on the eve of trial.   Id. at 9-10.   On this basis the trial court

granted Appellee’s motion in limine and excluded the fingerprint evidence for

failure to comply with the February 13, 2013 order. Id. at 11.

     Upon careful review, we conclude the trial court’s grant of Appellee’s

motion in limine was an abuse of discretion. See Commonwealth v. A.G.,

955 A.2d 1022, 1025 (Pa. Super. 2008) (reversing an order granting the

appellee’s motion in limine and holding that absent a “showing of any

egregious actions by the Commonwealth or any prejudice to the defense …

the extremely short time frame for the discovery, it is understandable that

there could be difficulties complying with the discovery order[]”); see also

Commonwealth v. Crossley, 653 A.2d 1288, 1292 (Pa. Super. 1995)

(holding, “the dismissal of the prosecution was not a remedy consistent with

the wrong committed by the Commonwealth. … A continuance, if necessary

and requested, would have been more appropriate[]”).         Instantly, it is

undisputed that the Commonwealth did not comply with the trial court’s

discovery order until the day before the April 4, 2013 hearing.    We agree

with the Commonwealth’s concession that a mistake was made and the

discovery was less than timely, however, a continuance would have given

the defense the opportunity to have the fingerprint cards reviewed by its




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expert witness without the drastic result of termination of the prosecution.

See id.

     Based on the foregoing, we conclude the trial court abused its

discretion in granting Appellee’s motion in limine to exclude the fingerprint

evidence. See Belani, supra. Therefore, we reverse the trial court’s April

4, 2013 order and remand for further proceedings.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2016




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