from the Order Entered March 25, 2015 In the Court of Common
Pleas of Philadelphia County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS,
OLSON, DUBOW, MOULTON AND SOLANO, JJ.
Commonwealth appeals from the March 25, 2015 order precluding
it from introducing at trial two jail call recordings in
which Appellee, speaking Spanish, allegedly made inculpatory
statements. This sanction was imposed because the
Commonwealth ostensibly failed to comply with an earlier
order to provide Spanish-to-English transcriptions of 464
other recorded phone calls in addition to the two calls the
Commonwealth intended to use. We reverse.
instant charges arose from an alleged robbery. Following
postponements for reasons unrelated to the instant dispute,
trial was set for February 10, 2015. On February 8, 2015,
Appellee filed a motion for discovery sanctions. This motion
represented that Appellee had requested in April 2014,
inter alia, "any and all written or otherwise
recorded statements attributed to the defendant, as well as
any transcripts and recordings of any electronic
surveillance." Motion for Discovery Sanctions, 2/8/15,
at ¶ 3. The assistant district attorney had provided, on
February 6, 2015, digital copies of 466 calls placed by
Appellee while he was incarcerated. These tapes spanned
November 13, 2013, to November 19, 2014. The Commonwealth
informed counsel at that time that it intended to introduce a
total of six minutes from two of these phone calls.
February 10, 2015, the trial court held a hearing. Counsel
argued that the Commonwealth was required to produce
transcriptions of each call, translated into English, based
upon the theory that she "ha[s] an obligation and a duty
[to review], and my client has a right for me to review all
of the tapes, not just the six minutes that the Commonwealth
wants to use." N.T. Motions Hearing I, 2/10/15, at 13.
The Commonwealth countered that it had provided counsel with
a translation of the portions of the phone calls that it
intended to introduce at trial, "not for official
evidence . . . [but] for [counsel's] benefit so that
[counsel] can know exactly what is on the two phone
calls[.]" Id. at 14-15.
trial court declined to impose sanctions, but granted a
continuance so that defense counsel could review the tapes.
The Commonwealth thereafter agreed to provide official
transcriptions of "these tapes." However, as we
shall explain, the parties take different views of what, if
anything, the Commonwealth promised to transcribe when the
prosecutor made this statement.
[COMMONWEALTH]: Your Honor, in the meantime, I'm
going to have these tapes officially transcribed by a
certified translator, not from the court, and
provide a copy to Counsel in the meantime.
I would obviously ask for the fastest date possible. I know
you have a busy calendar. I think it would take me no more
than 30 days to get these transcribed.
. . . .
[APPELLEE]: I would ask the tapes to be provided 60 days
prior to trial, the transcripts.
THE COURT: We're just going to give it a regular date
because I don't know if he can send it to you 60 days
prior if we give it a shorter date.
[APPELLEE]: If we have a short date, Your Honor, could it be
30 days prior to trial?
[COMMONWEALTH]: That's fine.
THE COURT: Okay. Corrine, let's see if we can find a
What I'm going to say is that they have to be passed
three weeks prior to trial because I want to make sure there
is enough time for the transcription to be completed and done
right so that you can review it.
Id. at 21-22. The court did not enter a separate
written order; however, the docket sheet contains an entry
stating, "Commonwealth to get prison calls transcribed
and passed to Defense 3 weeks prior to trial." Docket
Commonwealth did not have any calls transcribed by a
certified translator. As a result, Appellee filed a second
motion for sanctions, claiming that the trial court
"held that the Commonwealth must translate
all of the tapes provided
and provide such tapes to the defense three weeks prior to
trial." Motion for Sanctions II, 3/20/15, at 2, ¶ 8
(unnumbered, emphasis added). The motion represented that, on
March 2, 2015, the prosecutor informed defense counsel that
his office lacked the resources to translate the tapes and
suggested to counsel that she review the translation with her
client so the parties could "agree on a version that
accurately presents the contents of the phone calls."
Id. at 3, ¶ 9. Appellee rejected this notion,
claiming that it would "force [Appellee] to provide
evidence against himself and to aid in his own
prosecution[.]" Id. at 3, ¶ 1.
another hearing, the prosecutor explained to the court that
he had requested a certified translator, but his superiors
refused to pay the fee. N.T. Motions Hearing II, 3/25/15, at
5. Instead, he had Spanish-speaking detectives create an
additional transcript to replace the previous version.
Appellee's counsel reiterated her contention that counsel
was "still completely handicapped in the sense that I
don't have the other 464 calls that are still not
provided to me." Id. at 6-7. The trial court
granted the motion and precluded the Commonwealth from
introducing any of the tapes. The Commonwealth filed a motion
to reconsider, which the court denied.
Commonwealth simultaneously filed a notice of appeal and a
concise statement of matters complained of on appeal. The
trial court authored its opinion in response, and the matter
is ready for our review. The Commonwealth presents the
Did the trial court abuse its discretion in suppressing audio
recordings of defendant's telephone calls made in prison
unless the Commonwealth also translated the calls from
Spanish to English and created translated transcripts of the
Commonwealth's brief at 4.
Commonwealth asserts that it was required only to disclose
the two tapes which it informally translated, and avers that
it supplied Appellee with the full set of tapes as a matter
of policy and professional courtesy. The Commonwealth further
argues that the other 464 calls are not material, in that
they "are personal conversations that have no relevance
to any issue in this case." Commonwealth's brief at
15. Concomitantly, the Commonwealth asserts it cannot
possibly be sanctioned for refusing to transcribe and
translate something it was not required to turn over in the
first instance. Additionally, the Commonwealth maintains the
trial court was not authorized to require the Commonwealth to
prepare transcriptions and translations of any call in that
the criminal discovery rule speaks only to evidence that
actually exists. Finally, the Commonwealth states that
Appellee was not prejudiced by its failure to supply a
law and standard of review
first set forth the basic principles governing the
Commonwealth's discovery obligations in a criminal case.
The applicable rule of criminal procedure declares a
preference for informal discovery, contemplating that the
parties will "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." Pa.R.Crim.P. 573(A). Rule 573 states that
informal discovery must take place before a party may request
discovery via motion. Upon motion by the defendant, the rule
delineates the items that the Commonwealth must supply:
(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.
(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement,
and the identity of the person to whom the confession or
inculpatory statement was made that is in the possession or
control of the attorney for the Commonwealth;
. . . .
(g) the transcripts and recordings of any electronic
surveillance, and the authority by which the said transcripts
and recordings were obtained.
573 does not abridge or limit the Commonwealth's duty to
provide discovery pursuant to Brady v. Maryland, 373
U.S. 83 (1963), and its progeny. "In Brady, 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." Commonwealth v.
Burke, 781 A.2d 1136, 1141 (Pa. 2001) (quotation marks
omitted). "There are three components of a true
Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued." Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
the rule imposes greater obligations upon prosecutors than
the Brady requirements. For instance, (B)(1)(b)
requires production of a defendant's written confession.
Nevertheless, our cases frequently analyze whether a
particular discovery sanction was justified by analyzing
whether the evidence was required to be disclosed pursuant to
Brady. See e.g. Commonwealth v. Robinson,
122 A.3d 367 (Pa.Super. 2015) (reversing order precluding
Commonwealth from introducing evidence, analyzing
Brady). That one would draw upon Brady
principles in determining materiality is unsurprising since
the rule limits disclosure to "material" items,
Pa.R.Crim.P. 573(B), and "material for Brady
purposes" has a particular meaning. See e.g.
Commonwealth v. Willis, 46 A.3d 648 (Pa. 2012) (noting
that admissibility at trial is not a prerequisite to
disclosure under Brady).
Commonwealth has violated its discovery obligations, the
trial court is authorized to impose sanctions:
(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 (emphasis added).
the Commonwealth disclosed all of the evidence by
disseminating to Appellee digitized copies of all of
Appellee's prison calls. Nonetheless, the trial court
prohibited inclusion of the two material tapes, presumably
under the emphasized catch-all provision. We apply the
deferential abuse of discretion standard to any employed
remedy. "The trial court has broad discretion in
choosing the appropriate ...