March 10, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
STORM BEER Appellant
Appeal from the Judgment of Sentence of May 3, 2013 In the Court of Common Pleas of Jefferson County Criminal Division at No.: CP-33-CR-0000606-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and WECHT, J.
Storm Cloud Beer ("Beer") appeals his May 3, 2013 judgment of sentence. Specifically, Beer argues that the trial court erred in denying his motion to suppress recordings of telephone conversations between himself and a witness while Beer was in jail. After review, we affirm .
In May 2012, Beer, while on probation, began living with Megan Caylor ("Caylor"). Caylor signed a home provider agreement with Jefferson County Adult Probation that indicated various term s and conditions of the probation. One of those provisions was that there could be no firearms or weapons kept in the home.
In July 2012, following a break-in in their home, Caylor purchased a .40-caliber Hi-Point S&W pistol. Caylor testified that Beer showed her how to use the gun and went shooting with her. Notes of Testimony ("N.T."), 4/ 19/ 2013, at 93. The gun was kept in the home in the drop ceiling in the living room .
Caylor also testified that she saw Beer fire the gun on two different occasions. N.T. at 98-99. Jamie Edgell ("Edgell") observed the second incident of Beer firing the gun. When Edgell was arrested on a probation violation, he offered information about Beer's activities, in the hope that it would earn him a more lenient sentence. Upon receiving Edgell's information, on September 6, 2012, the probation department searched Caylor and Beer's residence. During the search, the gun was recovered from the ceiling. Beer was arrested.
Beer was charged with persons not to possess a firearm, 18 Pa.C.S.A. § 6105(a)(1). Because Beer had prior convictions for burglary, he was not permitted to possess, use, manufacture, control, sell or transfer firearm s. 18 Pa.C.S.A. § 6105(a), (b). Beer's jury trial was scheduled for April 19, 2013.
On the morning of Friday, April 19, Beer's counsel raised an oral motion to suppress recordings of telephone calls. Counsel alleged that, on the day before trial, he received five hours of phone calls between Beer and Caylor that were recorded while Beer was in jail. N.T. at 4. The Commonwealth's attorney told the trial court that he inform ed Beer's counsel about the tapes two days earlier on Wednesday. Id. at 5. The Commonwealth's attorney characterized some of the tapes that he planned to play for the jury as admissions by Beer, in which Beer apologized to Caylor and took responsibility for the situation, and another tape in which Beer displayed anger towards Caylor for testifying against him. Id. at 6-7. Beer's counsel objected because he had not received the tapes until 3 p.m. on the day before trial and the files that he received were not in a form at that he could access. Id. at 7. Because Beer's counsel felt that he was disadvantaged by the late disclosure, he requested that the tapes be suppressed, or, in the alternative, a continuance. Id. at 8. The trial court denied the motion, on the basis that the tapes were turned over to Beer shortly after the Commonwealth received them, and because Beer's counsel could have requested the tapes from the jail. The court also found that Beer would know what he said during these phone calls so there should be no surprise. Id. at 9-10. However, the court did provide an immediate recess for Beer's counsel to listen to the portion of the tapes that the Commonwealth intended to play for the jury. Id. at 13-14.
Trial commenced and the jury convicted Beer. On May 3, 2013, Beer was sentenced to five to ten years' incarceration. On May 17, 2013, Beer filed a notice of appeal. The trial court ordered, and Beer timely filed, a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Beer presents one issue for our review:
A. Did the Court com m it reversible error in failing to grant [ Beer's] motion to suppress the recorded telephone conversations which were submitted by the Commonwealth to the defense the day prior to trial?
Beer's Brief at 5.
While Beer frames his issue as a challenge to the denial of a suppression motion, the claim actually presents a challenge to the sanction (or lack thereof) for a discovery violation. As such, our standard of review is as follows:
The trial court has broad discretion in choosing the appropriate remedy for a discovery violation. Our scope of review is whether the court abused its discretion in not excluding evidence pursuant to Rule 573(E).
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (internal citation omitted)
Rule 573 provides for discovery in criminal cases. Pa.R.Crim .P. 573. It is mandatory for the Commonwealth to provide certain types of discovery materials. Pa.R.Crim.P. 573(B). The rule also provides the remedy for any violations:
I f at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to com ply with this rule, the court may order such party to perm it 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.
However, to grant relief, it is not sufficient for a defendant to merely allege a discovery violation:
A defendant seeking relief from a discovery violation must demonstrate prejudice. A violation of discovery does not automatically entitle appellant to a new trial. Rather, an appellant must demonstrate how a more timely disclosure would have affected his trial strategy or how he was otherwise prejudiced by the alleged late disclosure.
Causey, 833 A.2d at 171.
A review of Beer's appellate brief and his argument when he presented his motion reveals that Beer has not demonstrated prejudice. Beer presents no argument related to how his defense strategy would have changed had he had the tapes, nor does Beer allege that he might have called additional witnesses or changed his cross-examination of the Commonwealth's witnesses. Further, Beer did not renew his request for a continuance after listening to the tapes. Additionally, the tapes related to conversations between Beer and Caylor. A review of the record demonstrates that Beer had a full and fair opportunity to cross-examine Caylor at trial. N.T. at 115-35. See Commonwealth v. Jones, 668 A.2d 491, 512 (Pa. 1995) (finding no prejudice when defendant did not request a continuance and was able to cross-examine thoroughly the witness).
Because Beer has not demonstrated prejudice, no relief is due.
Judgment of sentence affirmed.