COMMONWEALTH of Pennsylvania, Appellant v. Leroy MALDONODO, Appellee
No. 1191 EDA 2015
Superior Court of Pennsylvania.
Argued March 21, 2017 Filed September 12, 2017
173 A.3d 769
Therefore, I would affirm the Commonwealth Court‘s decision because MFA finalized and satisfied its tax obligation on September 19, 2008, which constituted the “actual payment of the tax” within the meaning of
3. Because of the statutory language change in 1997, I disagree with Justice Donohue‘s concurrence that had MFA made insufficient quarterly payments and an additional late payment along with its annual tax report, it could only request a refund to the extent of the late payment. Concurring Op. of Donohue, J. at 766. This is not the right result because it returns us to Calvert‘s payment approach, which the legislature specifically eliminated in 1997. In addition, I respectfully disagree that if the Commonwealth Court opinion were correct that MFA did not actually pay its taxes until it filed its annual tax report, then the Department of Revenue would have charged MFA interest for its late payment. Id. at 765-66. This statement fails to appreciate the distinct nature between a “payment” and an “actual payment of the tax.” The Commonwealth did not impose interest because when MFA determined its final tax liability in September, it became clear that MFA had already satisfied its obligation through the estimated payments and credit carried forward from a prior year. Accordingly, while MFA did pay its taxes in April, the “actual payment of the tax” occurred in September, when MFA finalized its tax liability and satisfied its obligation.
Cheryl A. Brooks, Public Defender, Philadelphia, for appellee.
BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON, DUBOW, MOULTON AND SOLANO, JJ.
OPINION BY BOWES, J.:
The 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.1
The 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 in-
On 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 14-15.2
The 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 date.
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 entry, 2/10/15.
The 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, ¶ 18 (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, ¶ 19. Appellee rejected this notion,
At 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.
The 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 following issue:
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 recorded statements?
Commonwealth‘s brief at 4.
The 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 certified translation.
I
Applicable law and standard of review
We 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.”
(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.
However, the rule imposes greater obligations upon prosecutors than the Brady requirements. For instance,
If the 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.
Presently, 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 remedy for a discovery violation.” Commonwealth v. Poplawski, 634 Pa. 517, 130 A.3d 697, 718 (2015). The term discretion imports the exercise of judgment, wisdom and skill so as to reach a dispas-
II
Trial court‘s justifications for sanction
Since the trial court has broad discretion in choosing a discovery remedy, we begin with examining why the court imposed the sanction. The trial court set forth two alternative theories justifying the sanction, and we address each in turn. The first theory relied upon contractual law principles, with the trial court stating that the Commonwealth promised to provide certified transcriptions and translations of all 466 calls. The second theory relied upon a finding that transcriptions and translations were needed so that trial counsel could effectively discharge her duties under the Sixth Amendment.
III
First rationale: A contract to provide discovery
A
Sanctions for breaking a purported promise to transcribe all calls
We begin with the contractual theory, as the trial court reasoned that the Commonwealth could be sanctioned for its failure to provide certified transcriptions and translations of all calls as it purportedly promised to do, regardless of whether the Commonwealth was required to supply those materials under the law.
The key dispute is what, if anything, the Commonwealth promised to do when the assistant district attorney stated at the first sanctions hearing, “Your Honor, in the meantime, I‘m going to have these tapes officially transcribed by a certified translator[.]” N.T. Motions Hearing I, 2/10/15, at 21. The trial court apparently interpreted this statement to mean that the Commonwealth promised to provide certified transcriptions of all tapes, as opposed to the two it intended to introduce at trial. The trial court states that “[T]he parties reached a binding agreement for the Commonwealth to provide defense counsel with written transcriptions[.]” Trial Court Opinion, 9/17/15, at 10 (citing Commonwealth v. Hemingway, 13 A.3d 491 (Pa.Super. 2011)).
Both parties extensively address this theory and invoke contractual law principles. “Both [A]ppellee and the lower court relied on this representation, and the agreement was memorialized by a court order evident in the docket. The Commonwealth never contested that [an] agreement was made before the trial court.” Appellee‘s brief at 17. The Commonwealth, on the other hand, claims that there was not an agreement at all. “It is settled that for an agreement to exist, there must be a meeting of the minds.” Commonwealth‘s brief at 22. The Commonwealth highlights that, in context, the statement referred only to the two tapes in question, since the volume of the other calls was such that a translator would have to “transcribe and translate more than 15 Spanish-language recordings a day, seven days a week” to comply with the thirty-day time period
Appellee, like the trial court, relies upon Hemingway as controlling the question of whether sanctions are authorized based on a breach of a promise to supply discovery. We find that Hemingway is distinguishable. Hemingway involved a Commonwealth appeal from an order precluding thirty-four witnesses from testifying due to the prosecution‘s failure to provide the five co-defendants with transcripts of the witnesses’ grand jury testimony. At a pretrial conference, the Commonwealth had agreed to provide copies of the grand jury testimony transcripts by a particular date. The order outlining that agreement explicitly stated that the failure to do so would result in an order preventing those witnesses from testifying. Id. at 494. The Commonwealth provided the materials four days late. Consistent with its earlier order, the trial court precluded the Commonwealth from calling the witnesses.
The Commonwealth appealed, and we observed that the trial court could validly sanction the failure to abide by the order even though the order resulted from the Commonwealth‘s own agreement to provide the materials by the specific date. Id. at 498. However, we determined that the sanction was unwarranted since the Commonwealth had substantially complied with the order, and, looking at the “specific facts of this case and the rationale behind the... order, we are constrained to agree ... that this sanction yielded too extreme a result.” Id. at 502. Pertinent to the instant appeal, we made this additional observation:
This does not mean that a trial court cannot preclude evidence or testimony when a binding agreement is reached between the parties, the parties have actual knowledge of the sanction that is to be employed for failing to abide by the terms of the agreement, and one or more of the parties abjectly refuse to comply. However, the record does not support such a finding in the instant case.
Id. at 503.
Appellee argues that the aforementioned passage applies herein because, unlike in Hemingway, the Commonwealth did not comply with its promise to any extent. We find that the case is inapposite. The circumstances of this case are quite different since a criminal defendant is entitled to review a witness‘s grand jury transcripts following his or her testimony at trial.
Additionally, even assuming that the Commonwealth‘s ambiguous promise to transcribe “these calls” referred to all 466 of the calls as opposed to the two calls it intended to introduce at trial, there is no indication that the Commonwealth had knowledge of the sanction for noncompliance. Hence, Hemingway does not support Appellee‘s position.
B
Appellee‘s alternative contractual theory
In his substituted en banc brief, Appellee now argues that the sanction was justified because the Commonwealth was required to provide certified translations of only the two material calls.
In its renewed argument to this Court en banc, the Commonwealth sets up a fallacious straw man, claiming that the trial court and the Panel of this Court required the Commonwealth “to transcribe and translate, at its own expense, 464 recordings of irrelevant and inadmissible prison telephone calls defendant made on other occasions.” However, the record shows that the trial court ordered the Commonwealth to transcribe and translate only the two pertinent audio recordings.
Appellee‘s brief at 6.
This statement is rather remarkable considering Appellee continuously represented to the trial court that the Commonwealth was obligated to transcribe all 466 calls. Indeed, Appellee himself interpreted the trial court‘s February 10, 2015 order as requiring transcription of all the calls. In his response to the Commonwealth‘s motion to reconsider the sanction, Appellee stated “The [c]ourt‘s initial ruling was legally sound and should be enforced. The Commonwealth should be required to produce English transcripts for all the tapes.” Appellee‘s Response to the Commonwealth‘s Motion for Reconsideration, 4/5/15, at 2.
Plainly, the trial court interpreted the prosecutor‘s ambiguous statement, “I‘m going to have these tapes officially transcribed by a certified translator,” to refer to all 466 calls. In the interest of judicial economy, we proceed to examine whether the Commonwealth was required to supply certified transcripts of the two material calls.4
The Commonwealth argues that the order cannot be justified even on these limited grounds because it cannot be ordered to provide evidence in a form demanded by the defense, i.e., a transcription prepared by a certified translator. The Commonwealth argues that such an order is inconsistent with Commonwealth v. Robinson, 122 A.3d 367 (Pa.Super. 2015). We agree.
Robinson involved a Commonwealth appeal from an order sanctioning the Commonwealth for failing to provide transcripts of victims’ interviews. The Commonwealth had charged multiple defendants with various counts of physical and sexual abuse of minor victims. Id. at 370. As part of the investigation, the victims were interviewed by the Philadelphia Children‘s Alliance (“PCA“). These interviews were taped, copied, and provided to
Instantly, the Commonwealth provided Appellees during discovery with DVD copies of all the victims’ PCA interviews. Despite this disclosure, Appellees filed motions to compel as well verbatim written transcripts of all video interviews, alleging the transcripts were necessary for effective cross-examination and impeachment of the victims because playing the video interviews during cross-examination would be inefficient and cause unnecessary delay. The court granted the motions and ordered the Commonwealth to transcribe the interviews. When the Commonwealth ultimately demurred, the court precluded the Commonwealth from calling the victims to testify at Appellees’ respective trials. We think the court‘s action was in error.
The Commonwealth has no duty to provide evidence in a form that the defendant demands for the convenience of the defense. Appellees had no general right of discovery. Once the Commonwealth disclosed the victims’ video DVD interviews, the evidence was no longer in the exclusive control of the Commonwealth. Thus, the evidence was equally available to Appellees in a source other than a written transcript.
Id. at 373 (emphases added; quotation marks and citations omitted).
Appellee responds that Robinson is inapplicable because the trial court ruling therein terminated the case, while here the Commonwealth is merely precluded from introducing the two recordings, and thus the remedy was “not extreme, as it does not end the Commonwealth‘s prosecution.” Appellee‘s brief at 17. We are not persuaded. Robinson did not hold that the scope of the remedy was too drastic in light of the violation. Rather, it concluded that there was simply no violation to sanction in the first place due to the equal access. The same holds true herein.
We recognize that the trial court was concerned that counsel did not actually have access to these calls, as counsel could not understand the calls. In Robinson, the interviews were presumably in English and readily understood by the attorneys. Thus, we agree that Robinson is not directly controlling to that extent.
However, we cannot agree that certified translations are per se required. Robinson holds that a defendant is not entitled to evidence in the form he wishes, which is precisely the argument Appellee now makes.5
“The Commonwealth‘s refusal to have a certified interpreter translate and transcribe the relevant phone calls into English was an issue of fundamental fairness.” Appellee‘s brief at 12. Appellee does not explain why fairness dictates a certified translation, as opposed to an accurate one, at this stage of the proceedings. The Commonwealth correctly notes that Appellee has confused what the Commonwealth intends to introduce with what it actually introduces at trial.
When addressing whether a remedy is an abuse of discretion, we have stated that, “[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgressions.” In re York County Dist. Attorney‘s Office, 15 A.3d 70, 73 (Pa.Super. 2010) (citation omitted). We fail to see any transgression whatsoever under these facts. Appellee does not claim that the supplied transcriptions were inaccurate in any way, and he refused to speak to his attorney about the matter. Appellee‘s Response to the Commonwealth‘s Motion for Reconsideration, 4/5/15, at 2 (“[Appellee] should not be required to help the Commonwealth translate the prison tapes in any capacity.“). Appellee invokes a number of federal decisions for the proposition that “before conversations in a foreign language may be submitted to a jury, issues must be addressed about the accuracy of the translation[.]” Appellee‘s brief at 13 (emphasis added). His citations do not support his argument as a matter of persuasion. Consider the following passage from United States v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003), a case cited by Appellee:
Commonly, the transcripts and the English translations of those transcripts are produced by the government and copies are then given to the defendant. Sound trial management and considerations of fairness caution that the government provide these copies to defense counsel adequately in advance, so that disputes concerning the reliability of the transcription in the original language and of the English translation may be brought to the attention of the district court or resolved by agreement. Counsel, of course, may agree to the accuracy in both senses.
Id. at 8 (emphasis added). Herein, Appellee expressly refused to address the accuracy of the transcript provided by the Commonwealth, and, in fact, claimed that agreeing to the accuracy of the transcript in any way would violate his Fifth Amendment privilege against self-incrimination.
Reviewing an offer of proof with his attorney to discuss the accuracy of what the Commonwealth has already transcribed is not the equivalent of forcing Appellee to translate the tapes. Appellee‘s argument would transform, for example, a pre-trial stipulation to the accuracy of a lab test for drugs into a violation of the Fifth Amendment. Since Appellee refused to even consider whether the supplied transcriptions and translations were accurate, it is difficult to see how he was prejudiced in any way.
C
Applying contractual law principles under these circumstances undermines Rule 573‘s purpose
While we are satisfied that the sanction cannot be justified on the contractual basis, we do not hold that an actual binding agreement or a promise to supply discovery that is not otherwise mandated by law is immaterial to remedies. Rather, in these circumstances, where there is much ambiguity, we find that injecting contractual law principles is unwarranted.
We recognize that Hemingway, supra suggests that a promise to provide discovery is itself a pertinent consideration to the question of remedies. We do not dispute that general proposition. Rather, in this case, where the scope of the Commonwealth‘s asserted promise is unclear and there is no knowledge whatsoever of a sanction for failing to turn over the material, we do not think
Having concluded that the contract theory cannot justify the sanction under these facts, we turn our attention to whether the Commonwealth was required to provide transcriptions of all phone calls in the first instance.
IV
Trial court‘s alternative rationale: Sixth Amendment
The trial court‘s
In this case, the prison tapes are discoverable, on request by defense counsel to the Commonwealth, under
Pa.R.Crim.P. 573(B)(1)(b) as an inculpatory statement orPa.R.Crim.P. 573(B)(1)(g) as a recording of any electronic surveillance. The trial court has broad discretion in deciding the admissibility of evidence and in choosing the appropriate remedy for a discovery violation. UnderPa.R.Crim.P. 573(E) , “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.” In fact, the Sixth Amendment demands that in all criminal prosecutions, the accused shall enjoy the right to effective counsel and to be confronted with the witnesses against him.U.S. Const. amend. VI . Thus, Defendant‘s Sixth Amendment rights would
be violated without a timely produced transcription of the tapes and render counsel ineffective.
Trial Court Opinion, 9/17/15, at 9 (emphasis added). The trial court also stated that “[T]he Rule of Completeness demands that a defendant possesses a right to admit the rest of the transcript so that the defendant may provide context for an allegedly inculpatory statement or correct misleading evidence[.]” Id. at 11. Hence, the trial court determined that the Commonwealth was required to provide transcriptions of all 466 tapes so that defense counsel could adequately prepare for trial.
We find that the trial court‘s ruling is a misapplication of the law, and therefore represents an abuse of discretion warranting reversal.
A
Disclosure applies only to material evidence
First, the trial court misunderstood the Commonwealth‘s discovery obligations. Pursuant to both Brady and
In this respect, we note that Appellee speaks Spanish, can review the calls, and can assist counsel in identifying any helpful material within those calls.
The fact that the Commonwealth provided more than it was required cannot be used to its detriment. To hold otherwise would create perverse incentives. Brady claims typically arise following conviction, when the defendant seeks a new trial based on the failure to turn over evidence. However, as the United States Supreme Court has stated, the post-trial Brady standard logically applies to what must be disclosed pre-trial.
First, in advance of trial, and perhaps during the course of a trial as well, the prosecutor must decide what, if anything, he should voluntarily submit to defense counsel. Second, after trial a judge may be required to decide whether a nondisclosure deprived the defendant of his right to due process. Logically the same standard must apply at both times. For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor‘s constitutional duty to disclose.
Nevertheless, there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge. Because we are dealing with an inevitably imprecise standard, and because the significance of
United States v. Agurs, 427 U.S. 97, 107-08, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphases added). See Kyles v. Whitley, 514 U.S. 419, 439, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (“[A] prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. This is as it should be.“)8
Herein, the Commonwealth provided Appellee with the unfettered ability to review all of the calls despite its averment that 464 of them were immaterial, and, therefore, not subject to disclosure. To repeat our observation supra, it would do disservice to the rule‘s purpose to punish the Commonwealth for erring on the side of disclosure. Access to the material obviously placed Appellee in a better position, despite the Commonwealth‘s assurances that 464 of the calls were immaterial, than no access at all.
The Commonwealth prudently erred on the side of disclosure and permitted Appellee to go on a fishing expedition, but the trial court determined that the Philadelphia District Attorney‘s Office must pay for the fishing pole, too. This was erroneous.
B
Discovery obligations are satisfied if the defendant has access
Compounding its materiality error, the trial court ignored the legal consequences flowing from the fact of disclosure. Fundamentally, both Brady and the rule are designed to ensure that the defendant has access to material evidence and the ability to review that information. As the United States Court of Appeals for the Third Circuit has observed: ”Brady and its progeny permit the government to make information within its control available for inspection by the defense, and impose no additional duty on the prosecution team members to ferret out any potentially defense-favorable information from materials that are so disclosed.” United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005).9
Emphasis on access is further reflected by the rule‘s text requiring the Commonwealth, when applicable, to “permit the defendant‘s attorney to inspect and copy or photograph [discovery materials].”
The attorney for the Commonwealth should not charge the defendant for the costs of copying pretrial discovery materials. However, nothing in this rule is intended to preclude the attorney for the Commonwealth, on a case-by-case basis, from requesting an order for the defendant to pay the copying costs. In
these cases, the trial judge has discretionary power to determine the amount of costs, if any, to be paid by the defendant
Comment,
C
The Commonwealth was not required to aid counsel‘s investigation
Finally, the trial court‘s ruling did not distinguish between the fact of access and the duty of investigation, but instead collapsed them. This too was erroneous.
The prosecution must disclose a police report containing exculpatory information, but it need not draw arrows directing counsel‘s eyes to the helpful paragraphs. The Sixth Amendment guarantee of effective assistance of counsel assumes, since counsel is presumed effective, that the attorney will read the materials and find the helpful information. This is why ineffectiveness claims can be premised upon a failure to adequately investigate and review the materials provided to the defense. Thus, the onus is on counsel to review all materials to which she has access. See Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa.Super. 2013) (en banc) (noting that it can be per se unreasonable for defense attorney to conduct no investigation into known witnesses); Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (discussing prejudice inquiry “where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence“).
However, the court herein mistakenly transformed the Sixth Amendment guarantees of effective counsel and confrontation of witnesses into a generic pretrial right of discovery. The trial court cites no authority for that proposition, and we are aware of none. “The Sixth Amendment concerns implicated in the Brady rule focus on whether the prosecutor‘s failure to disclose material exculpatory evidence deprived the defendant of a fair trial.” Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1094 (1999) (citing Agurs, supra); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (“There is no general constitutional right to discovery in a criminal case[.]“); Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality) (“The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful.]“).
As the trial court recognized, counsel had a duty to investigate the supplied material. The court erred by merging counsel‘s duty to investigate with the Commonwealth‘s duty to disclose.10 If the
Order reversed. Case remanded. Jurisdiction relinquished.
BOWES, J.
Notes
...
(B) Defendant in a Criminal Case:
...
(2) When a witness in a criminal case has previously testified before an investigating grand jury concerning the subject matter of the charges against the defendant, upon application of such defendant the court shall order that the defendant be furnished with a copy of the transcript of such testimony; however, such testimony may be made available only after the direct testimony of that witness at trial.
Conceptually, we find ourselves at the intersection between two particular branches of the Brady doctrine. Our jurisprudence has made clear that Brady does not compel the government to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself. It is equally clear, however, that defense counsel‘s knowledge of, and access to, evidence may be effectively nullified when a prosecutor misleads the defense into believing the evidence will not be favorable to the defendant. See, e.g., United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (finding suppression where government appraised defense counsel of the existence of certain tapes but also stated that those tapes would be of “no value“); Hughes v. Hopper, 629 F.2d 1036, 1039 (5th Cir. 1980).
At issue, then, is whether the representations made by the various government attorneys compel a finding of suppression, where every other pertinent consideration—i.e., (1) the mountainous piles of documents, which belonged to Pelullo, (2) the government‘s lack of specific knowledge about the existence of favorable, material evidence, and (3) defendant‘s extended access to, and purported knowledge of, particular documents—weighs against such a finding.
Id. at 213 (quotation marks omitted).