J-S39042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                    Appellee                 :
                                             :
              v.                             :
                                             :
SHAHEED SPRINGS,                             :
                                             :
                    Appellant                :            No. 2079 EDA 2013

        Appeal from the Judgment of Sentence entered on May 16, 2013
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0006558-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 20, 2015

        Shaheed Springs (“Springs”) appeals the judgment of sentence

imposed following his conviction of carrying a firearm without a license and

carrying a firearm on public streets and public places.1 We affirm.

        The trial court set forth the relevant factual and procedural history in

its Opinion, which we incorporate herein for purposes of this appeal.           See

Trial Court Opinion, 8/27/14, at 1-3 (unnumbered).

        On appeal, Springs raises the following question for our review:

        Did [] the [trial] court violate [Springs’s] right to a fair trial by
        granting the prosecutor’s mid-trial request to call a fingerprint
        expert, during its case-in-chief at [Springs’s] retrial, which gave
        [Springs] no time to secure the presence of [his] fingerprint
        expert to testify at trial in rebuttal?

Brief for Appellant at 3.



1
    See 18 Pa.C.S.A. §§ 6106, 6108.
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      Springs contends that the trial court violated his rights to due process

and   a    fair   trial,   as   well   as   Pa.R.Crim.P.   573,   by   permitting   the

Commonwealth to call an expert witness in the middle of Springs’s retrial,

without granting Springs a continuance in order to secure the presence of a

defense expert witness.          Brief for Appellant at 12.       Springs claims that,

during his retrial, the prosecutor informed defense counsel, for the first time,

that he would be calling a fingerprint expert, and that this “belated notice

violated Rule 573, crippled [Springs’s] defense in that he was unable to

secure the presence of his own expert to rebut the Commonwealth’s expert,

and constituted a violation of due process.” Id. at 12-13. Springs argues

that the trial court should have, sua sponte, granted a recess or continuance

of the trial, as a remedy for the Commonwealth’s late notice that it would be

presenting a fingerprint expert. Id. at 16-17.

      Rule 573 of the Pennsylvania Rules of Criminal Procedure governs

pretrial discovery in criminal cases and provides, in pertinent part, as

follows:

      (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. Such
              motion shall be made within 14 days after arraignment,
              unless the time for filing is extended by the court. In such
              motion the party must set forth the fact that a good faith
              effort to discuss the requested material has taken place


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           and proved unsuccessful. Nothing in this provision shall
           delay the disclosure of any items agreed upon by the
           parties pending resolution of any motion for discovery.

     (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.

                                 ***

        (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;

                                 ***

     (2)   Discretionary With the Court.

                                 ***

        (b) If an expert whom the attorney for the Commonwealth
        intends to call in any proceeding has not prepared a report of
        examination or tests, the court, upon motion, may order
        that the expert prepare, and that the attorney for the
        Commonwealth disclose, a report stating the subject matter
        on which the expert is expected to testify; the substance of
        the facts to which the expert is expected to testify; and a
        summary of the expert’s opinions and the grounds for each
        opinion.

Pa.R.Crim.P. 573 (emphasis supplied).




                                 -3-
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      Pursuant to Rule 573, where no discovery has been requested, the

Commonwealth is not required to inform a defendant prior to trial that it

intends to call an expert as a witness. See Pa.R.Crim.P. 573(A); see also

Pa.R.Crim.P. 573(B)(1). Although Rule 573(B)(2)(b) provides a mechanism

whereby the trial court may order a Commonwealth expert to prepare a

report and provide such report to the defense, any such order is

discretionary, and the defendant is required to move the trial court for such

discovery. See Pa.R.Crim.P. 573(B)(2)(b).

      Our review of the record discloses no request by Springs, informal or

formal, for discovery from the Commonwealth.          Thus, the Commonwealth

was not requested or required to notify Springs of its intent to call Officer Bill

Trenwith (“Officer Trenwith”), a crime scene investigation expert, as an

expert witness, prior to Springs’s retrial.2    See Pa.R.Crim.P. 573(A); see

also Pa.R.Crim.P. 573(B)(1).      Accordingly, Springs’s claim that, pursuant

Rule 573, he was entitled to notification regarding the Commonwealth’s

intent to call Officer Trenwith as an expert witness prior to Springs’s retrial

lacks merit.

      Moreover, we discern no discovery violation with regard to Rule




2
 Officer Trenwith was not involved in the investigation of Springs’s case, and
did not testify in Springs’s first trial.



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573(B)(2)(b).3 At the inception of Springs’s retrial on January 25, 2013, the

Commonwealth submitted its witness list, which identified Officer Trenwith

as a trial witness. See N.T., 1/28/13, at 5-6. Although Officer Trenwith had

not been listed as a trial witness for Springs’s initial trial, Springs’s counsel

made no effort to determine the nature of Officer Trenwith’s anticipated

testimony. Four days later, on the morning of the second day of Springs’s

retrial, the Commonwealth met with Officer Trenwith, for the very first time,

and thereafter notified Springs’s counsel that it would be calling Officer

Trenwith to provide expert testimony regarding the difficulty of obtaining

fingerprints from guns.    See id. at 4-6.    Notably, Commonwealth witness

Officer Gregory Welsh (“Officer Welsh”), a ballistics expert, had provided the

same testimony, without objection, during Springs’s initial trial. 4 Id. at 5, 7;

see also N.T., 1/23/13, at 137-38.

      In response to the Commonwealth’s notification, Springs’s counsel did

not move the trial court for an order requiring Officer Trenwith to prepare an




3
  Springs relies on several cases which involve an actual discovery violation
by the Commonwealth.         However, because we conclude that no such
discovery violation occurred in this case, we regard those cases as
inapposite.
4
  During Springs’s initial trial, Officer Welsh conceded that he was not a
fingerprint expert, and attributed his knowledge regarding the difficulty of
obtaining fingerprints from guns to his police colleagues. See N.T., 1/23/13,
at 137.



                                   -5-
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expert report, pursuant to Rule 573(B)(2)(b).5      Instead, Springs’s counsel

simply requested that the trial court preclude Officer Trenwith from offering

any testimony at Springs’s retrial.   See N.T., 1/28/13, at 4.    Because we

discern no violation of Rule 573 by the Commonwealth, the trial court did

not err or abuse its discretion by refusing to preclude Officer Trenwith from

testifying.6

      We similarly conclude that the trial court did not err by failing to, sua

sponte, grant a continuance of Springs’s retrial.    Although Springs did not

request a continuance, such a remedy would have been an option available

to the trial court if there had, in fact, been a discovery violation.     See

Pa.R.Crim.P. 573(E).    However, because we conclude that no discovery




5
  Nevertheless, the trial court offered to permit Springs’s counsel to speak
with Officer Trenwith “for as much time as you need” in order to discern the
nature and substance of his anticipated testimony. See N.T., 1/28/13, at 4.
However, Springs’s counsel indicated that she had already spoken with
Officer Trenwith that morning, and that speaking with him was “not the
issue.” Id.

6
   Even assuming, arguendo, that there had been a discovery violation
involved in this matter, such a violation would not automatically entitle
Springs to a new trial. Springs must also establish “that the introduction of
the expert testimony caused him prejudice to the degree that it affected his
trial strategy or likely affected the outcome of the proceedings.”
Commonwealth v. Roles, 2015 PA Super 115, *29 (Pa. Super. 2015).
Here, Springs has shown no prejudice from Officer Trenwith’s testimony, as
he had been placed on notice of this issue during his first trial, when Officer
Welsh provided the same testimony. See N.T., 1/23/13, at 137-38.



                                  -6-
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violation occurred, no continuance was warranted.7

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2015




7
  Nevertheless, in an effort to accommodate Springs, the trial court advised
Springs’s counsel that she could have additional time to speak with Officer
Trenwith, prior to his testimony, and that she could have an additional day
to “discuss [the issue] with whomever.” N.T., 1/28/13, at 14. The trial
court also advised Springs’s counsel that she was free to call a rebuttal
expert witness to rebut Officer Trenwith’s anticipated testimony. See N.T.,
1/29/13, at 5-7. The mere fact that the rebuttal expert that Springs’s
counsel preferred to use was unavailable, and Springs refused to call
another rebuttal expert, does not entitle Springs to a continuance. See id.
at 5 (wherein the trial court noted that “there are hundreds of witnesses out
there. Your choice is to not call another witness.”).


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                                                                                                                       06/22/2015 03:14 PM




                                     IN THE COURT OF COMMON PLEAS
                                    FOR THE COUNTY OF PHILADELPHIA
                                         CRIMINAL TRIAL DIVISION



           COMMONWEAL TH OF PENNSYLVANIA
                                                                                            NO.:   CP-51-CR-0006558-2012
                          v.           CP-51-CR-0006558-2012 Comm. v, Springs, Shaheed


           SHAHEED SPRINGS
                                                          Opinion                          Superior Court No.:
                                                                                           2079 EDA 2013               FILED
                                            111111111111111111 I 111111                                             AUG 2 7 2014
                                                      7191494401
                                                                                                            · Crimin.a~ Appeals Unit
                                                               OPINION                                     Ftrst Jud1c1al District of PA
           ANHALT,J.

                   Appellant in the above-captioned matter appeals his convictions on all charges alleging

           that the Court erred in allowing the Commonwealth's crime scene expert to testify and by reading

           back the testimony of a Commonwealth witness in response to a question by the jury during

           deliberations. This Court submits the following Opinion in accordance with the requirements of

           Pa.R.A.P. 1925(a). For the reasons set forth herein, the Court holds that the judgment should be

           affirmed.

           PROCEDURAL HISTORY

                  Appellant was initially tried by a jury on January 23, 2013 on charges of Carrying a

           Firearm Without a License and Carrying a Firearm on Public Streets and Public Places in

           Philadelphia in violation of Sections 6106 and 6108 of the Uniform Firearms Act. On January

           24, 2013, this Court declared a mistrial after the jury was unable to reach a verdict. Appellant

           was retried by another jury on the same charges on January 25, 28 and 29, 2013. On January 29,

________ 2013, the jury found Appellant guilty of all charges.                           -··- __




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       On May 12, 2013, this Court sentenced appellant to two and a half to seven years

incarceration for violation of Section 6108 and to a consecutive term of five years probation for

violation of Section 6106. Post-sentence motions were denied on July 9, 2013.

       Appellant filed a Notice of Appeal was filed on July 22, 2013. Several extensions of time

were granted to file a Pa.R.A.P.   1925(b) Statement of Matters Complained of on Appeal due to

the fact that the notes of testimony had not been transcribed completely.          A 1925(b) statement

was finally filed on July 28, 2014 after all the notes were finally transcribed.

FACTUAL HISTORY

       On March 28, 2012, Philadelphia Police Officers Sean Rios and Steven Cieslinski were

in uniform in a marked police vehicle when they received a radio call about a man with a gun

and shot fired in the vicinity of 23rd and Susquehanna. When the officers arrived at that location

approximately thirty seconds later, they observed a group of males, including Appellant, on the

west side of 23rd Street. When the officers exited their patrol car, Appellant immediately started

moving backwards away from the officers. He also failed to show his hands after the officers

ordered everyone in the group to do so. Appellant then grabbed the right side of his waist like he

was pulling or holding onto something concealed in his waistband and ran.

       Officer Rios pursued Appellant on foot over walls and through alleyways, losing sight of

him for no more than a second when Appellant turned a corner. During the chase, Officer Rios

observed Appellant discard a firearm onto a grassy area of a rear yard of a house. As Officer

Rios chased Appellant on foot, Officer Cieslinski got back in the police vehicle and pulled up at

the end of the alleyway in which Appellant was running. When Appellant ran out, Officer

Cieslinski grabbed him and attempted to handcuff him, but Appellant resisted by flailing his

arms about. Officer Rios caught up and assisted in holding Appellant down.
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       By the time Appellant was secured, other officers had arrived on the scene. Officers Rios,

Cieslinski and Toman immediately went back to the area where Officer Rios saw Appellant

throw the gun. Once there, it took no more than a few minutes to find the firearm. Police later

tested the gun and found it to be operable. It was loaded with live cartridges and had gunshot

residue and lint in all six chambers. The gun was not examined for fingerprints or DNA

evidence. Over Appellant's objection, Officer William Trenwith, a Philadelphia Police Officer

from the Crime Scene Unit, testified that it is very difficult to obtain identifiable fingerprints or

DNA samples from a gun.

DISCUSSION

       Appellant raises two issues on appeal. In his first issue, Appellant claims that it was error

for this Court to permit Officer Trenwith to testify at trial as a crime scene expert on grounds that

the witness's name was not provided to the defense until the night before trial, no expert report

was provided, and the defense had no time to investigate the expert or provide a rebuttal witness

in time for trial. In this claim, Appellant essentially contends that the Commonwealth failed to

comply with Rule 573(B)(l)(e)       of the Pennsylvania     Rules of Criminal Procedure,       which

provides that in all court cases, the Commonwealth        shall disclose "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."      This claim is without merit in view of the particular

circumstances of this case.

       "The purpose of the discovery rules is to permit the parties in a criminal matter to be

prepared for trial;   trial by ambush is contrary to the spirit and letter of those rules."

Commonwealth v. Fox, 619 A.2d 327, 336-336 (Pa.Super.             1993), citing Commonwealth v.
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Moose, 602 A.2d 1265,      1274 (1992). The goal of discovery is to "accord a defendant the

opportunity to discover evidence which he did not know existed, as well as to seek possession of

evidence of which he was aware." Commonwealth v. Hussmann, 485 A.2d 58, 61 (Pa.Super.

1984).

         Here, Appellant was aware the Commonwealth would present testimony that fingerprints

and DNA are very difficult to obtain from guns since, at Appellant's first trial, which ended in a

mistrial just days earlier, the Commonwealth presented that very testimony via Officer Gregory

Welsh, a ballistician who had examined the firearm discarded by Appellant. (N.T. 1-23-13, pp.

131-13 7). The only difference at the retrial was that the Commonwealth called a crime scene

expert to testify to the same thing. Further, there was no expert report to provide the defense.

Officer Trenwith was unfamiliar with the facts of Appellant's case, and was merely testifying

concerning the general difficulty in lifting identifiable fingerprints or obtaining DNA samples

from guns and ammunition to explain why such tests are often not performed on firearms.

Finally, defense counsel admitted she had the opportunity to speak with Officer Trenwith the day

before he was called as a witness. (N.T. 1-29-13,   pp. 8-9). Defense counsel also could have

asked for a continuance to investigate the testimony of Officer Trenwith and had the opportunity

to call a rebuttal witness. Accordingly, Appellant was aware of the existence of this testimony

and was adequately prepared for trial. See, Commonwealth v. Fox, supra.

         In his second issue, Appellant contends that when the jury asked during deliberations

whether Officer Rios said "he saw the defendant throw something" or said "he threw a gun", the

Court's action of reading the officer's testimony "I could see him discard a firearm" was error.

Appellant claims that by reading this testimony to the jury instead of allowing the jury's
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                         '·

recollection to control, an irrebuttable presumption as to the truth of that statement was created.

This issue is also without merit.

       "When a jury requests that recorded testimony be read to it to refresh its memory, it rests

within the trial court's discretion to grant or deny such request." Commonwealth v. Gladden, 665

A.2d 1201, 1205 (Pa.Super. 1995)(en bane), appeal denied, 675 A.2d 1243 (Pa. 1996) (quoting

Commonwealth v. Johnson, 618 A.2d 415, 418 (Pa.Super. 1992). A trial court's decision in this

matter should not be reversed on appeal absent a flagrant abuse of discretion. Gladden, 665 A.2d

at 1205. Here, where the jury's question involved an important aspect of the case, the Court

believed it was in the interest of justice to read back Officer Rios' testimony to the jury. Officer

Rios consistently stated throughout his entire testimony both on direct and cross examination that

he saw the Appellant discard a firearm. Appellant does not allege that Officer Rios did not make

the statement that the Court read back to the jury or that the Court mischaracterized             his

testimony. Moreover, this action did not create an irrebuttable presumption as to the truth of the

officer's testimony as Appellant baldly contends. Rather, the reading back of the testimony

simply served to refresh the jury's recollection as to what Officer Rios said about what he had

observed. It was up to the jury to decide whether or not it found the officer's statement credible.

Accordingly, the Court did not abuse its discretion here.

CONCLUSION

       For all the foregoing reasons, Appellant's judgment of sentence should be affirmed.




DIANA ANHALT, J.

August 22, 2014
