Appeal from the Order Entered March 12, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002004-2009, CP-51-CR-0007083-2009
BEFORE: BOWES, OTT, and STRASSBURGER, [*] JJ.
The Commonwealth appeals from the March 12, 2012 order precluding it from presenting the testimony of an expert witness at the joint trial of Appellees Lloyd Abdul Wilson and Leslie Kelsey. We reverse and remand.
Appellee Wilson was charged with two counts of possession of a controlled substance with intent to deliver ("PWID")—one relating to crack cocaine and the other pertaining to oxycodone. In addition, he was charged with one count each of conspiracy, obliterating the manufacturer's number on a firearm, and possession of: 1) a controlled substance; 2) drug paraphernalia; 3) a firearm by a prohibited person; and 4) a firearm with an obliterated or altered manufacturer's number. Appellee Kelsey was charged with two counts of PWID—one relating to crack cocaine and the other pertaining to oxycodone, and one count each of conspiracy, possession of a firearm by a prohibited person, possession of a controlled substance, possession of drug paraphernalia, and possession of an instrument of crime.
The charges were brought based upon the following events. On the evening of September 16, 2008, Philadelphia Police Officers Myra Hawkins and Patricia Hodge met with a confidential informant who told them that the occupants of 2736 West Oakdale Street, Philadelphia, were selling drugs from that location. At 9:00 p.m., a controlled buy was conducted at that address. Officers Hawkins and Hodge observed the CI approach and knock on the window of 2736 West Oakdale Street. Appellee Kelsey opened the door, the CI entered the location and exited it two minutes later, and the CI returned to the two officers. The CI did not have the controlled-buy money but was in possession of cocaine in blue-tinted baggies.
On the evening of October 14, 2008, another controlled buy was performed at the same location with the same CI. On that occasion, Officers Hawkins and Hodge observed the CI knock on the door, converse with Appellee Kelsey at that location, Appellee Kelsey entered and exited 2736 West Oakdale Street, and Appellee Kelsey handed objects to the CI. Those objects, which were handed over to the police officers, were blue-tinted packets of cocaine. Between 6:00 and 8:00 p.m. on October 15, 2008, the CI engaged in a third controlled buy at the same address. This time,
Appellee Wilson opened the door, spoke with the CI, accepted the buy money, entered and exited 2736 West Oakdale Street, and handed the CI blue-tinted packets containing cocaine.
Police executed a warrant at 2736 West Oakdale Street at 8:00 p.m. on October 15, 2008. Appellees were inside, identified by Police Officers Hawkins and Hodge, and arrested. Appellee Wilson was in possession of twenty dollars of the controlled buy-money and other cash while Appellee Kelsey had cash and marijuana on his person. At 2736 West Oakdale
Street, police also uncovered more cocaine in blue-tinted packages as well as marijuana, six Xanex pills and pills that were partially composed of either hydrocodone or oxycodone. Police also discovered a large amount of cash and two loaded firearms.
Appellees originally were slated to be tried together. However, on February 15, 2012, Appellee Kelsey was not brought to Philadelphia County from the State Correctional Institution in Graterford, and the court entered an order severing the two cases. Trial commenced against Appellee Wilson on February 16, 2012. At that time, the Commonwealth indicated that it planned to call an expert witness, Philadelphia Police Officer Kevin Keys, to opine that the twelve oxycodone pills discovered inside 2736 West Oakdale Street were possessed with intent to deliver. It noted that, while it had evidence of delivery in connection with the cocaine, without expert testimony, it had no proof that the oxycodone pills were possessed with intent to deliver. Appellee objected because he was not given a copy of a report by the expert witness prior to trial and "could not adequately cross-examine this witness as to substances that were found in the house." N.T. Trial, 2/16/12, at 17. Appellee Wilson also claimed that he might be able to obtain an expert witness to counter Officer Keys' testimony. Id. at 31.
Initially, the trial court indicated that it would not permit the Commonwealth to call Officer Keys. Id. at 20-21. The Commonwealth responded that it was going to file an interlocutory appeal from that ruling. After some discussion of whether the Commonwealth could file an appeal under the circumstances, the trial court inquired about the status of Appellee Kelsey's case, which was listed for a status conference that same week. The court, in order to avoid a delay, reversed its exclusionary ruling, joined Appellees' cases, and accorded the Commonwealth fifteen days to prepare a written report regarding the proposed testimony of Officer Keys. N.T. Motion, 2/16/12, at 46-47, 72. At that point, Appellee Wilson moved for production of a report from Officer Keys as to his proposed opinion testimony.
At a hearing conducted on March 12, 2012, counsel for both Appellees appeared, and they sought to prevent Officer Keys' testimony on the ground that the expert report disseminated to them failed to meet the requirements of Pa.R.Crim.P. 573(B)(2)(b), which pertains to discretionary disclosure of Commonwealth evidence, and provides that:
(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.
In the present case, the Commonwealth gave Appellees a document that appeared on letterhead from the district attorney's office and stated:
Pursuant to Pennsylvania Rule of Criminal Procedure 573 (B)(2)(b), the Commonwealth has been ordered to provide an expert report in the above captioned cases. Rule 573 states that upon an order, the Commonwealth must prepare a report stating: (1) the subject matter on which the expert is expected to testify; (2) the substance of the facts to which the expert is ...