Com. v. Kennerly, J.

• Court: Superior Court of Pennsylvania
• Decided: April 7, 2021
• Docket: 295 EDA 2020
• Status: Unpublished

Opinion

J-S09037-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSHUA KENNERLY : No. 295 EDA 2020

Appeal from the Order Entered December 12, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001417-2019

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 07, 2021

The Commonwealth of Pennsylvania (“the Commonwealth”) appeals

from the Order dismissing the criminal charges against Joshua Kennerly

(“Kennerly”). After careful review, we reverse and remand for further

proceedings.

On October 29, 2018, Kennerly was arrested for using a fake

identification card in attempting to purchase two cellular telephones at a

Verizon store in Philadelphia, Pennsylvania, and charging them to the Verizon

account of Andrew Bunger (“the victim”). Kennerly was charged with one

count each of forgery, theft by deception, identity theft, and resisting arrest.1

At Kennerly’s preliminary hearing on February 26, 2019, a Verizon employee

testified that video surveillance of the incident existed. The trial court ordered

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1 18 Pa.C.S.A. §§ 4101(a)(1), 3922(a)(1), 4120(a), 5104. J-S09037-21

the Commonwealth to procure and preserve such evidence, and to make it

available to Kennerly. The Commonwealth thereafter requested, and the trial

court granted, two continuances in order to procure the surveillance video.

On December 12, 2019, Kennerly appeared for his bench trial, which

was scheduled to begin at 9:00 a.m. At approximately 11:30 a.m., the

Commonwealth informed the trial court that while the victim was present and

was prepared to testify, it did not have the surveillance video, and that its

eyewitnesses were running late. N.T., 12/12/19, at 2. After a discussion, the

trial court stated the following:

I’m going to have to dismiss the case because there is no case. If we had eye witnesses I would let you proceed without referencing the video. But we don’t have eye witnesses, and they can’t be coming to my courtroom at 1 o’clock when we start at 9 o’clock. That’s not acceptable. I mean, it’s unfortunate. But if we had the video -- we just don’t have anything. We have no eye witness and we have no video. So we have nothing -- except for the complainant, who unfortunately is the one who’s getting the short end of the stick here because the people who actually interacted with the person didn’t come to court on time and there’s no video[.]

Id. at 7. At that point, the Commonwealth informed the trial court that the

eyewitness, who had personally observed the transaction, had, in fact, just

arrived and was prepared to testify. Id. Kennerly’s counsel responded that

the outstanding video still presented a problem, as the eyewitness could not

be impeached without it. Id. at 8-9. The Commonwealth suggested a

negative inference regarding the video; however, the trial court indicated to

the Commonwealth that it could not reference the video, or anything that the

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video depicted. Id. at 11-12. The Commonwealth responded that such a

prohibition would constructively dismiss its case. Id. at 12-13.

The trial court took the matter under advisement, and after a short

recess, stated the following:

All right. I’ve gone back and forth with what we’re going to do with this case. Long story short, I’m dismissing it. The video is, to me, too important. I guess if we’re talking about a statement that got there late [sic], we’re talking about he gets back the video yesterday, that’s different, but I don’t think we can go forward without the video.

Id. at 13-14. The Commonwealth filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

The Commonwealth presents the following issue for our review:

Did the trial court abuse its discretion by imposing the extreme sanction of dismissal for (1) a discovery violation where [Kennerly] would not have been prejudiced by a less severe remedy and the Commonwealth acted in good faith by requesting two trial continuances to attempt to locate and disclose surveillance video of [Kennerly]’s crimes and then, when it was unable to obtain the video, informed the [trial] court and opposing counsel before trial, agreed to a remedy that all references to the video’s existence be precluded, and even proposed a negative inference against the Commonwealth; and (2) the Commonwealth’s witnesses’ lateness[,] where the necessary witnesses were present before the [trial] court dismissed the case?

Brief for Appellant at 4.

The Commonwealth argues that the trial court abused its discretion in

dismissing the charges against Kennerly based on the missing surveillance

video. Id. at 13. The Commonwealth asserts that dismissal was

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inappropriate, as the record did not reflect that the video was exculpatory

pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Brief for Appellant at

13-15. The Commonwealth further claims that it did not act in bad faith

regarding the video’s production, as the Commonwealth promptly informed

the trial court and Kennerly that the video was outstanding, and suggested

several remedies, including a negative inference against the Commonwealth.

Id. at 15-16. The Commonwealth asserts that dismissal was inappropriate

because the Commonwealth did not act in “deliberate, bad faith prosecutorial

misconduct,” and that Kennerly would not suffer prejudice from a less severe

remedy, such as an additional continuance. Id. at 17-19. As a result, the

Commonwealth argues that the trial court should have permitted its

eyewitness to testify as to that witness’s encounter with Kennerly in the

Verizon store, rather than dismissing the case. Id. at 19-21. Finally, the

Commonwealth asserts that the eyewitness’s tardiness at trial did not justify

dismissal, as the witness appeared at court while the proceedings were taking

place; the Commonwealth was prepared to proceed with the single witness

along with the victim; and the trial court could have elected to acquit in the

event that the Commonwealth’s witnesses did not establish Kennerly’s guilt.

Id. at 21-23.

“Decisions involving discovery matters are within the sound discretion

of the trial court and will not be overturned absent an abuse of that discretion.”

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation

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and quotation marks omitted), appeal denied, 189 A.3d 986 (Pa. 2018). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id. (citation and quotation marks

omitted).

Pennsylvania Rule of Criminal Procedure 573 governs pretrial discovery

in criminal cases and provides, in pertinent part, as follows:

(B) Disclosure by the Commonwealth.

***

(2) Discretionary With the Court.

(a) In all court cases, … if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:

(ii) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;

(iv) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

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(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(B)(2)(ii), (v), (E).

The purpose of the discovery rules is to prevent a trial by ambush that

violates a defendant’s right to due process. Commonwealth v. Ulen, 650

A.2d 416, 419 (Pa. 1994). If the Commonwealth commits a discovery

violation, “[t]he trial court has broad discretion in choosing the appropriate

remedy.” Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018)

(citations omitted). However, such “discretion is not unfettered.”

Commonwealth v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008) (en banc)

(citation omitted). This Court has suggested that in most cases, “[a]

continuance is appropriate where the undisclosed statement or other evidence

is admissible and the defendant’s only prejudice is surprise.” Id.

“In some cases, under some facts, it may be appropriate for a court to

dismiss charges where the Commonwealth fails to abide by an order of that

court.” Commonwealth v. Robinson, 122 A.3d 367, 372 (Pa. Super. 2015)

(citation omitted). However, “[t]he failure must involve a failure of justice or

prejudice to a defendant to justify the discharge of a criminal action. When

such interests are not involved, the offending party may be otherwise

sanctioned without defeating the public interest.” Id. (citation omitted).

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As our Supreme Court has explained,

[d]ismissal of criminal charges punishes not only the prosecutor ... but also the public at large, since the public has a reasonable expectation that those who have been charged with crimes will be fairly prosecuted to the full extent of the law. Thus, the sanction of dismissal of criminal charges should be utilized only in the most blatant cases. Given the public policy goal of protecting the public from criminal conduct, a trial court should consider dismissal of charges where the actions of the Commonwealth are egregious and where demonstrable prejudice will be suffered by the defendant if the charges are not dismissed.

While th[e Supreme] Court does not minimize the ethical and legal obligations of the prosecution to comply with lawful discovery requirements, where there is no evidence of deliberate, bad faith overreaching by the prosecutor intended to provoke the defendant into seeking a mistrial or to deprive the defendant of a fair trial, the proper remedy for the Commonwealth’s failure to disclose exculpatory materials should be less severe than dismissal.

Commonwealth v. Burke, 781 A.2d 1136, 1144, 1146 (Pa. 2001)(emphasis

added and citations omitted).

Here, there was no evidence of record that the Commonwealth’s

violation was intended to provoke Kennerly into seeking a mistrial or deprive

him of a fair trial. See id. at 1146. There was also no evidence that the

Commonwealth’s actions were the result of deliberate misconduct or bad faith,

either in its failure to produce the video or in its witness’s tardiness. See N.T.,

12/12/19, at 4 (wherein the Commonwealth agrees with the trial court that

its witness should have been present when court started; the Commonwealth

and its officer had been calling the witness and the witness’s manager

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throughout the morning; and the victim had traveled to Philadelphia from his

home in Pittsburgh in order to testify). There is no evidence of record that

the video is exculpatory. See Burke, 781 A.2d at 1146 (discussing dismissal

as an inappropriate remedy when the Commonwealth failed to disclose

exculpatory evidence). Finally, Kennerly has demonstrated no prejudice,

beyond surprise, in the Commonwealth’s failure to disclose the video in a

timely fashion. See Commonwealth v. Yost, 502 A.2d 216, 219 (Pa. Super.

1985) (stating that a continuance is an appropriate remedy where the

undisclosed evidence is otherwise admissible and the defendant’s only

prejudice is surprise).

In light of the foregoing, we conclude that the trial court abused its

discretion when it dismissed the case against Kennerly based on the

Commonwealth’s failure to produce the video, rather than utilizing the

alternative remedies at its disposal under Rule 573(E).2 See Burke, supra;

Robinson, supra. Accordingly, we reverse and remand for proceedings

consistent with this memorandum.

Order reversed and remanded. Jurisdiction relinquished.

2 We note that our ruling in this matter is not intended to bar the trial court’s discretion to revisit the drastic sanction of dismissal, should further proceedings reveal misconduct on the part of the Commonwealth that satisfies the standard our Supreme Court has established in Burke.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/7/2021

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