Com. v. D.K., 1661 WDA 2015

Appellant (Commonwealth) charged D.K. with numerous sexual-offense counts based on alleged abuse of his son over ~10 years; jury trial set for October 19, 2015.
Commonwealth produced a December 10, 2014 medical report by Dr. Kupchella in June 2015 noting anal scarring; trial disclosure complied with Rule 573 at that time.
On October 12, 2015 (one week before trial), the Commonwealth provided an addendum in which Dr. Kupchella concluded the complainant’s physical trauma was consistent with the abuse allegations.
Defense filed a motion in limine (after receiving the Commonwealth’s witness list and before the addendum) to limit Dr. Kupchella’s testimony to the December 10, 2014 report; defense argued the addendum was untimely and prejudicial.
Trial court excluded the addendum and limited Dr. Kupchella’s testimony at the Commonwealth’s case-in-chief to opinions in the December 10, 2014 report, permitting additional opinions on rebuttal if defense opened the door.
Commonwealth appealed, arguing exclusion was an abuse of discretion and that a continuance (not exclusion) was the proper remedy, and that defense was not surprised because CYS records and prior civil testimony disclosed the conclusions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by excluding untimely expert addendum and limiting expert testimony	Exclusion was drastic; Rule 573 has no deadline and a continuance (not exclusion) was the proper remedy	Late addendum prejudiced defense and constituted "trial by ambush"; exclusion appropriate	Court affirmed: exclusion/limitation was within trial court discretion given timing and prejudice
Whether defense lacked surprise because conclusions were previously available in CYS records and civil testimony	Commonwealth: defense knew conclusions months earlier from CYS file and civil proceedings	Defense: relied on original report and lacked notice of the addendum conclusions	Court found Commonwealth’s claim unpersuasive; timing and manner of addendum production caused prejudice

Commonwealth v. Belani, 101 A.3d 1156 (Pa. Super. 2014) (late scientific testing not per se grounds for exclusion where delay unavoidable; continuance may be appropriate)
Commonwealth v. Montgomery, 626 A.2d 109 (Pa. 1993) (remedy for newly discovered trial evidence may include continuance or mistrial depending on circumstances)
Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2000) (remedy for nondisclosure analyzed in light of prosecutorial bad faith and prejudice)
Whitaker v. Frankford Hosp., 984 A.2d 512 (Pa. Super. 2009) (expert testimony must be limited to the fair scope of pre-trial report to prevent unfair surprise)
Commonwealth v. Johnson, 456 A.2d 988 (Pa. Super. 1983) (continuance insufficient when prejudice goes beyond surprise)
Commonwealth v. Appel, 689 A.2d 891 (Pa. 1997) (discovery rules aim to prevent trial by ambush)
Commonwealth v. Ulen, 650 A.2d 416 (Pa. Super. 1994) (Rule 573’s purpose is to avoid trial by ambush and protect due process)