J-S16010-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAZARO ORTIZ BAEZ : : Appellant : No. 1632 EDA 2023
Appeal from the Judgment of Sentence Entered May 24, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-3678-2019
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED AUGUST 12, 2024
Lazaro Ortiz Baez (“Ortiz Baez”) appeals from the judgment of sentence
imposed following his convictions for four counts of unlawful contact with a
minor, two counts of rape of a child, and one count each of involuntary deviate
sexual intercourse with a child (“IDSI”), endangering the welfare of a child,
indecent exposure, and indecent assault of a person less than thirteen years
of age.1 We affirm.
In 2019, three female complainants, K.E.F., D.A.E., and L.M.A., reported
individual incidents of sexual abuse by Ortiz Baez which occurred between
2003 and 2011 when they were all young children living in the same
community as Ortiz Baez on Pemberton Road in Chester County. K.E.F. had
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 6318(a)(1), 3121(c), 3123(b), 4304(a), 3127(a), 326(a)(7). J-S16010-24
previously reported a portion of the sexual abuse by Ortiz Baez in 2004, when
she was six years old; however, no charges were filed at that time. In late
2019, Ortiz Baez was arrested and charged at the above docket with a
multitude of crimes relating to his alleged sexual abuse of the three girls.
Ortiz Baez filed an omnibus pretrial motion requesting, inter alia,
discovery of reports, documents, or videotaped interviews pertaining to
K.E.F.’s initial report against him in 2004, and severance of the complaint and
information into three cases, one for each complainant’s allegations, to be
tried separately. The trial court conducted a pretrial hearing at which defense
counsel again requested discovery pertaining to K.E.F.’s initial report in 2004.
See N.T., 3/11/21, at 58-59. The prosecutor indicated that she intended to
immediately contact both state and local police to attempt to locate the
records from that report. See id. at 59. The trial court entered an order
which, inter alia, required the Commonwealth to turn over the requested
discovery regarding K.E.F.’s 2004 report as soon as possible, if it existed, and
left open the application for severance. The trial court later entered an order
denying Ortiz Baez’s application for severance.
The matter proceeded to a jury trial. On the morning of trial, defense
counsel explained to the trial court that the Commonwealth contacted her the
previous day to tell her that VHS tapes of K.E.F.’s and Ortiz Baez’s interviews
with then-Trooper Maurice Nadachwoski from the 2004 report of abuse were
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located and would be available for her to view the next morning. 2 See N.T.,
5/24/22, at 6. Defense counsel requested that the trial court dismiss all the
charges or, alternatively, continue the case to allow her to review the
videotapes with her client. See id. at 8. The prosecutor represented that she
had requested all records regarding the 2004 report after the pretrial hearing
and was told by the Pennsylvania State Police that no evidence was located.
Id. at 14. However, the day before trial, Detective Nadachowski was notified
that the evidence was located. Id. at 15. The prosecutor conceded that this
late disclosure constituted a discovery violation, and indicated that the
Commonwealth would not use the evidence at trial. Id. The prosecutor
further explained that the Commonwealth was working to convert the VHS
tapes to a CD to give to the defense. Id. at 16. The trial court denied the
defense motion for dismissal of all charges and released the jury for the day,
giving Ortiz Baez and defense counsel the courtroom for the day to review the
videos, once the Commonwealth converted them. Id. at 23-24.
The following morning, defense counsel explained that she viewed the
interview of K.E.F. and had technical issues with the recording due to its age,
finding it to be slow and lacking a time stamp. Defense counsel further
indicated that there were substantive issues with K.E.F.’s interview, which
referenced allegations of abuse by Ortiz Baez and his son, which were not ____________________________________________
2 In 2004, Maurice Nadachowski was a Trooper with the Pennsylvania State
Police and separately interviewed K.E.F. and Ortiz Baez regarding K.E.F.’s allegations. At the time of trial, Nadachowski was a Detective with the Chester County District Attorney’s Office.
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easily distinguishable. See N.T., 5/25/22, at 4. K.E.F.’s interview was also
conducted in Spanish, and defense counsel transcribed the interview and
translated it into English. See id. at 5. Defense counsel argued that K.E.F.’s
interview included exculpatory evidence for Ortiz Baez. Id. at 7. Defense
counsel renewed her motion for the dismissal of all charges, or, alternatively,
a continuance to allow a neutral party to translate K.E.F’s interview. Id. at 8.
The Commonwealth claimed that the exculpatory evidence contained in the
interview, namely, that in 2004, K.E.F. reported only that Ortiz Baez touched
her over her clothing, was already in the record from the written report of
K.E.F.’s disclosure, which was previously provided to Ortiz Baez in discovery
in 2021. Id. at 9. The trial court instructed the parties to deliver their opening
statements while Detective Nadachowski reviewed the transcript. Id. at 17.
Prior to opening statements, the trial court instructed the jury on, inter alia,
the need to keep each charge and each victim separate in their consideration
of the evidence. Id. at 29. The transcript of K.E.F.’s 2004 interview was
returned to defense counsel with some additions made by Detective
Nadachowski, and both sides agreed to the accuracy of the translation. Id.
at 67, 73.
K.E.F. testified that Ortiz Baez was a family member who babysat her
and her siblings. Id. at 81-83. K.E.F. explained that when she was five years
old, Ortiz Baez regularly took her into his kitchen, alone, pulled her pants and
underwear down, pulled his own pants down, and rubbed his penis against her
butt and vagina. Id. at 84-89. K.E.F. further testified that on four occasions,
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Ortiz Baez inserted his penis into her vagina, and twice he inserted his penis
into her mouth. Id. at 92. K.E.F. testified that she is related to D.A.E. and
L.M.A., and they are five and six years younger than her, respectively. Id. at
78-80. K.E.F. explained that she recalled speaking to the police in a recorded
interview in 2004 about her allegations against Ortiz Baez. Id. at 122.
Detective Nadachowski testified that he interviewed K.E.F. in 2004 when
she was six years old. See N.T., 5/26/22, at 40-41. According to Detective
Nadachowski, K.E.F.’s mother asked him not to pursue criminal charges
against Ortiz Baez at the time. Id. at 42. Detective Nadachowski further
testified that when he interviewed K.E.F. in 2004, she told him that Ortiz Baez
had touched her vagina over her clothing. Id. at 52. Defense counsel did not
enter the transcript of K.E.F.’s 2004 recorded interview into evidence. Id. at
64-65.
L.M.A. testified to her familial relationship to K.E.F. and D.A.E., and the
fact that they spent time together growing up in the same community on
Pemberton Road. See N.T., 5/25/22, at 147-48. L.M.A. explained that while
she was not directly related to Ortiz Baez, she was related to both K.E.F. and
D.A.E., who were related to him, and she knew him from living in the same
community. Id. at 150. L.M.A. testified that one day when she was six or
seven years old, she was outside and saw Ortiz Baez with a popsicle, so she
asked him if she could have one and he brought her inside his house. Id. at
151-52, 166. L.M.A. testified that Ortiz Baez picked her up and tried to kiss
her, but she resisted. Id. at 152.
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D.A.E. testified to her familial relationship with K.E.F., L.M.A., and Ortiz
Baez. Id. at 193-95. D.A.E. testified that when she lived in the community
on Pemberton Road, she went to Ortiz Baez’s house when she was four or five
years old, whereupon he sat her on his lap and placed his hand inside her
underwear and rubbed her vagina. Id. at 200, 203, 206.
At the conclusion of trial, the jury found Ortiz Baez guilty of the above-
referenced charges.3 The trial court ordered that a presentence investigation
report be prepared as well as an assessment by the Sexual Offender
Assessment Board to determine whether Ortiz Baez was a sexually violent
predator (“SVP”).
On October 19, 2022, the trial court conducted a sentencing hearing.
At the conclusion of the sentencing hearing, the trial court determined that
Ortiz Baez was an SVP, and sentenced him to an aggregate term of twenty-
five years and nine months to fifty-one years and six months in prison. Ortiz
Baez filed a post-sentence motion requesting, inter alia, modification of his
sentence. The trial court granted Ortiz Baez’s motion to modify sentence and
re-sentenced him on May 24, 2023, to an aggregate sentence of twenty-one
years and four months to forty-two years and four months in prison. Ortiz
Baez filed a timely notice of appeal, and both he and the trial court complied
with Pa.R.A.P. 1925.
Ortiz Baez raises the following issues for our review:
3 The Commonwealth withdrew the remaining charges.
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I. Did the trial court err in denying [Ortiz Baez’s] application for severance?
II. Did the trial court err in failing to dismiss the prosecution or, in the alternative, continue the case after the Commonwealth produced two VHS tapes with recordings of [Ortiz Baez’s] interview with law enforcement and [K.E.F.’s] interview with law enforcement in 2004?
Ortiz Baez’s Brief at 3 (unnecessary capitalization omitted).
Ortiz Baez’s first issue challenges the trial court’s denial of his motion to
sever, for which our standard of review is as follows:
A motion for severance is addressed to the sound discretion of the trial court, and . . . its decision will not be disturbed absent a manifest abuse of discretion. The critical consideration is whether the appellant was prejudiced by the trial court’s decision not to sever. The appellant bears the burden of establishing such prejudice.
Commonwealth v. Page, 59 A.3d 1118, 1133 (Pa. Super. 2013).
Severance is governed by Pennsylvania Rule of Criminal Procedure 583,
which provides: “The court may order separate trials of offenses . . ., or
provide other appropriate relief, if it appears that any party may be prejudiced
by offenses or defendants being tried together.” Pa.R.Crim.P. 583. Under
Rule 583, the prejudice the defendant suffers due to the joinder must be
greater than the general prejudice any defendant suffers when the
Commonwealth’s evidence links him to a crime. See Commonwealth v.
Lauro, 819 A.2d 100, 107 (Pa. Super. 2003). As our Supreme Court has
explained:
[T]he “prejudice” of which Rule [583] speaks is not simply prejudice in the sense that appellant will be linked to the crimes
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for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence. The prejudice of which Rule [583] speaks is, rather, that which would occur if the evidence tended to convict [the] appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.
Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997) (emphasis in
original). Moreover, “the admission of relevant evidence connecting a
defendant to the crimes charged is a natural consequence of a criminal trial,
and it is not grounds for severance by itself.” Id. The fact that a defendant
may have a better chance at acquittal in separate trials is not sufficient to
require severance. See Commonwealth v. Presbury, 665 A.2d 825, 828
(Pa. Super. 1995).
Based on the foregoing, our Supreme Court established the following
test for severance matters:
Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, . . . the court must therefore determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.
Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark, 543 A.2d 491,
496-97 (Pa. 1988)). “Where a trial concerns distinct criminal offenses that
are distinguishable in time, space[,] and the characters involved, a jury is
capable of separating the evidence.” Commonwealth v. Ferguson, 107
A.3d 206, 211 (Pa. Super. 2015) (citation and quotation marks omitted)
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(holding no risk of jury confusion when crimes involved different victims and
were separated in time).
Pursuant to this test, we must first determine whether the trial court
abused its discretion in holding that evidence of each of the offenses against
each victim would be admissible in a separate trial for offenses against the
other victims. In making this determination, we are mindful that evidence of
another crime, wrong, or act is generally not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with that character. See Pa.R.E. 404(b)(1). However, “[t]his
evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident” and only when “the probative value of the
evidence outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).
Specifically, the common plan or scheme exception provides:
[E]vidence of other crimes or bad acts may be admitted where the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Sufficient commonality of factors between the incidents dispels the notion that they are merely coincidental and permits the contrary conclusion that they are so logically connected they share a perpetrator.
Commonwealth v. Kurtz, 294 A.3d 509, 532 (Pa. Super. 2023) (citations
and quotation marks omitted) (concluding that motion to sever was properly
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denied where defendant was charged with raping five separate victims over a
five year period).
Ortiz Baez argues that it may have been difficult for the jury to evaluate
the merits of each complainant’s allegations separately because the joint trial
required them to acknowledge that there were three complainants with
allegations of a sexual nature. Ortiz Baez concedes that the facts of each
allegation were distinct, but claims that the jury “would lump the evidence
and decide the case based on the evidence as a whole.” Ortiz Baez’s Brief at
15. Ortiz Baez posits that the jury may have found one complainant
persuasive and then assumed that he committed the offenses alleged by the
other two complainants. Specifically, Ortiz Baez claims that because L.M.A.’s
allegations were less “graphic” than K.E.F.’s, they likely would not have
resulted in convictions if tried separately. Id. Ortiz Baez argues that because
all three complainants were young girls of Hispanic origin, the jury ignored the
differences in their claims and treated them all the same. Ortiz Baez further
claims that because the charges were brought in the same case, the jury was
likely to believe they all occurred around the same time, when they actually
occurred years apart.
Ortiz Baez contends that the allegations did not involve a common
scheme, plan, or design, and evidence of each offense would not have been
admissible in separate trials. To support this argument, Ortiz Baez highlights
the differences in each complainant’s allegations including the sexual acts
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themselves, the years they occurred, and the relation of the victims to Ortiz
Baez. Ortiz Baez argues that the allegations had no connection to each other
beyond himself being the perpetrator. Ortiz Baez claims there was no
evidence of a shared motive, intent, or absence of mistake linking the offenses
together. Ortiz Baez argues that he was unfairly prejudiced by the denial of
his motion to sever because it impacted his defense, trial strategy, witnesses,
and his decision whether to testify.
The trial court considered Ortiz Baez’s first issue and concluded that it
lacked merit. The trial court reasoned:
. . . [I]t is clear that it was proper for this court to deny [Ortiz Baez’s] request to sever the charges. The record shows that on April 11, 2019, the police received a Childline report regarding child victim D.A.E., then fifteen years old, regarding alleged sexual abuse. The report indicated that D.A.E. stated that she had been sexually abused by [Ortiz Baez] after a cousin’s birthday party, before she was six years old. D.A.E. was forensically interviewed on May 2, 2019, and she revealed that [Ortiz Baez] had put his hand under her dress and touched her vaginal area at his residence on Pemberton Road in New Garden Township, Chester County. During that interview D.A.E. revealed that two other relatives, K.E.F. and L.M.A., had also been abused by [Ortiz Baez].
****
On May 22, 2019, then twenty-year-old K.E.F. was interviewed by the police and revealed that when she was approximately five years old, [Ortiz Baez] and his wife would babysit her and her brothers at their home on Pemberton Road while their parents worked. K.E.F. disclosed that [Ortiz Baez] took her into the kitchen while his wife slept and sexually assaulted her on multiple occasions. He pulled her pants and his own pants down, rubbed his penis on her butt, and ejaculated on to her body and clothing while this rubbing occurred. K.E.F. further revealed
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that [Ortiz Baez] sexually abused her in other ways, including putting his penis in her mouth on multiple occasions.
On May 23, 2019, L.M.A.’s mother went to the police to report that [Ortiz Baez] “hugged” L.M.A. and tried to teach her “how to kiss” approximately nine years prior. On May 28, 2019, the fourteen-year-old L.M.A. revealed during a forensic interview that when she was six years old visiting relatives, she was in [Ortiz Baez’s] residence and he picked her up by both arms and attempted to kiss her. L.M.A. struggled, [Ortiz Baez] eventually released her, and she ran from his home.
Just over four months from the first Childline report, the criminal complaint was filed on August 29, 2019 charging [Ortiz Baez] with the abuse of D.A.E., K.E.F., and L.M.A. Even though the abuse of the three victims when they were children took place between approximately 2003 and 2011, the investigation of the abuse of each victim was entwined and only took about four months to complete. As the investigation unfolded, the names of additional victims were disclosed to the police. It is clear that the abuse of the three victims was part of a single, ongoing criminal episode by [Ortiz Baez].
Evidence of each of the instances of abuse would be admissible in separate trials for each victim and would involve the duplication of a majority of evidence at three separate trials. The evidence is admissible to show the pattern of criminal conduct by [Ortiz Baez] where he sexually abused young girls in his home on Pemberton Road in New Garden Township. Even though the exact acts [Ortiz Baez] committed against each victim were slightly varied, they were similar in nature, including his pattern of conduct. The type of victim chosen by [Ortiz Baez] was a pre- pubescent Hispanic female between five and eight years old with some family or friend relationship to [Ortiz Baez] and his family. [Ortiz Baez’s] actions formed the chain or sequence of events that told the entire story of his ongoing criminal conduct against young girls that found themselves in [Ortiz Baez’s] home for various reasons. The admissibility of the evidence involving the three victims showed [Ortiz Baez’s] common plan, scheme, or design and established [Ortiz Baez’s] purpose and intent to commit the offenses. It also refuted a defense of mistake or accident. Therefore, this court determined that the evidence of each of the offenses would be admissible in a separate trial for the others.
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Next, the court evaluated whether the evidence was capable of separation by the jury so as to avoid danger of confusion. . . . Based on the proffered facts it was clear to this court that the evidence would be capable of separation by the jury and would not cause confusion. Each of the three child victims encountered [Ortiz Baez] in his home in three distinct ways and had separate results that would easily distinguish them.
. . . Even though the victims were Hispanic females of similar age and the crimes occurred in [Ortiz Baez’s] home, each are easily distinguishable, capable of separation, and would not cause confusion with the jury.
Turning to the final analysis of whether [Ortiz Baez] would be unduly prejudiced by not severing the offenses, this court determined that the highly probative value of the evidence far outweighed any potential prejudice. . . .
. . . [I]t was proper to find that the probative value of the evidence far outweighed the prejudicial effect. Accordingly, this court did not err when it denied [Ortiz Baez’s] request to sever the charges. It must also be noted that this court instructed the jury as to how they could consider the evidence of other crimes . ..
[The] standard jury instruction properly limited the prejudicial effect of the evidence against [Ortiz Baez] and further diminished any danger of confusion of the evidence. . . . Consequently, based upon the severance test and the totality of the circumstances, this court’s severance ruling was proper and [Ortiz Baez’s] allegation on appeal should be dismissed.
Trial Court Opinion, 10/24/23, 8-13 (unnecessary capitalization omitted).
Following our review, we discern no abuse of discretion by the trial court
in denying Ortiz Baez’s motion to sever. Evidence of Ortiz Baez’s crimes
against each victim would be admissible in separate trials for each victim to
show Ortiz Baez’s common plan, scheme, or design to sexually abuse young
female children, who had familial ties to him, in his home. Ortiz Baez’s crimes
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reflect his habits and patterns of conduct. Namely, he created situations
where he was alone in his home with young girls, who viewed him as an older
family figure, and then abused them. There is sufficient commonality of
factors between the abuse of the three victims to dispel the notion that they
were merely coincidental or a mistake, and to permit the conclusion that they
were logically connected through Ortiz Baez. See Kurtz, 294 A.3d at 532.
We additionally discern no abuse of discretion by the trial court in
arriving at its determination that Ortiz Baez failed the establish that the jury
was incapable of separating the crimes to avoid confusion. The three victims
each alleged distinct criminal offenses surrounding their sexual assaults by
Ortiz Baez which were distinguishable by years, specific spaces in Ortiz Baez’s
home, and the people involved, which was clear because each victim testified
separately as to their own abuse. See Ferguson, 107 A.3d at 211.
Finally, we discern no abuse of discretion by the trial court in reaching
its conclusion that Ortiz Baez failed to establish prejudice as a result of the
denial of severance. Ortiz Baez did not establish that the evidence of his
offenses against the other victims showed nothing more than his propensity
to commit crimes, or that such evidence which was cumulative or incapable
of separation. See Collins, 703 A.2d 418 at 423. Further, Ortiz Baez’s
argument that he may have been acquitted of his crimes against L.M.A. in a
separate trial is not sufficient to show prejudice. See Presbury, 665 A.2d at
828. Accordingly, Ortiz Baez’s first issue merits no relief.
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In Ortiz Baez’s second issue, he contends that the trial court erred in
denying his motion for dismissal of all charges or a continuance of the trial
based on a discovery violation. Our standard of review for such a ruling is as
follows:
If a discovery violation occurs, the court may grant a trial continuance or prohibit the introduction of the evidence or may enter any order it deems just under the circumstances. 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 . . . 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 late disclosure.
Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citations
and quotation marks omitted).
Ortiz Baez claims that the late discovery of the VHS interview of K.E.F.
constituted a Brady4 violation. In order to successfully claim a Brady
violation, the accused must show: (1) that the evidence in question is either
exculpatory or impeaching; (2) the evidence was suppressed by the
Commonwealth; and (3) the accused was prejudiced by the suppression. See
Commonwealth v. Natividad, 200 A.3d 11, 26 (Pa. 2019).
Ortiz-Baez argues that the trial court abused its discretion in denying
his request for a continuance, resulting in prejudice to the preparation and
4 See Brady v. Maryland, 373 U.S. 83 (1963).
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presentation of his defense. Ortiz Baez contends that, because he wished to
use the evidence which was the subject of the discovery violation, he should
have been granted a continuance to manipulate the videotape into a more
functional form to show the jury. Ortiz Baez claims that the remedy provided
by the trial court, in allowing a transcript of the interview to be used instead
of the videotape, was inadequate as it was rushed to be finished before K.E.F.
testified. Ortiz Baez asserts that he was prejudiced because defense counsel
did not have time to incorporate the material from the interview into the
defense as a whole. Ortiz Baez argues that the videotape constituted Brady
material and the trial court deprived him of a full and fair trial by not ordering
a continuance.
The trial court considered Ortiz Baez’s second issue and determined that
it lacked merit. The trial court reasoned:
It is abundantly clear that turning over the interviews on the eve of trial was not an intentional act by the Commonwealth meant to prejudice [Ortiz Baez]. It would have been improper for this court to grant [Ortiz Baez’s] oral motion to dismiss the charges based on the late discovery of the videos. The proper remedy of precluding the Commonwealth from playing the videos was self-imposed by the Commonwealth and this court agreed with that limitation.
There was also no need to grant [Ortiz Baez’s] continuation request. The defense team was provided with the videos and was given technical help in the courtroom to allow them to play the videos for as long as was necessary. The trial was delayed while the transcript of the interviews was re-worked and agreed upon by the parties. It was unnecessary to grant a continuance of the trial and doing so would not have been a proper use of judicial resources. [Ortiz Baez] was not prejudiced. Accordingly, this issue on appeal is wholly without merit and should be dismissed.
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Trial Court Opinion, 10/24/23, at 31-32.
We discern no abuse of discretion by the trial court in its denial of Ortiz
Baez’s request for a continuance. The record is clear that the trial court
provided Ortiz Baez with time to review the videotapes and assistance in
transcribing the videotapes at the inception of trial. Furthermore, there is no
support in the record for Ortiz Baez’s assertions that the discovery violation
amounted to a Brady violation. First, Ortiz Baez does not explain with any
particularity how K.E.F.’s interview was exculpatory or impeaching in nature.
Moreover, the trial court determined that the Commonwealth did not
intentionally suppress the evidence, as would be required for a Brady
violation. Finally, Ortiz Baez has not shown how he was prejudiced by the late
disclosure because the fact that K.E.F. previously reported a less serious
sexual offense in 2004 was already known to him. Indeed, Ortiz Baez did not
even use the agreed-upon transcription of K.E.F.’s 2004 interview or move to
admit it in to evidence at trial because Detective Nadachowski testified
consistently with the contents of the 2004 interview. Finally, as a sanction for
the late disclosure, the Commonwealth voluntarily did not use the transcripts
at trial for any purpose. Accordingly, Ortiz Baez’s second issue merits no
relief.
Judgment of sentence affirmed.
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Date: 8/12/2024
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