NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
EDISON DAWSON MCCLELLAN :
:
Appellant : No. 131 MDA 2026
Appeal from the Judgment of Sentence Entered November 19, 2025 In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002089-2023
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 24, 2026
Appellant, Edison Dawson McClellan, appeals from the judgment of
sentence entered in the Court of Common Pleas of York County following his
conviction by a jury on the charges of aggravated assault, 18 Pa.C.S.A. §
2702(a)(1), strangulation, 18 Pa.C.S.A. § 2718(a)(1), and simple assault, 18
Pa.C.S.A. § 2701(a)(1). After our careful review, we affirm.
The relevant facts and procedural history are as follows: On May 11,
2023, the Commonwealth filed an Information charging Appellant with the
aforementioned crimes. Private counsel, William Graff, Esquire, initially
represented Appellant; however, on April 4, 2024, Attorney Graff filed a
motion to withdraw his representation. The trial court granted the motion,
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* Former Justice specially assigned to the Superior Court.
and on April 18, 2024, Mark Semke, Esquire, of the Office of Conflict Counsel,
entered his appearance on behalf of Appellant.
Appellant’s jury trial was set for July 7, 2025; however, on that date,
Appellant sought a continuance, and the jury trial was rescheduled for July 8,
2025.1 During trial, the victim, B.M., testified that, on Christmas Eve of 2022,
she and her paramour, Appellant, were at her home, and she wrapped
Christmas gifts for her young daughter, who was across the street at B.M.’s
parents’ home. N.T., 7/8/25, 203-04. B.M. testified that, when she finished
wrapping the gifts, she sat on the couch by Appellant. Id. After she said
something that Appellant “did not like,” Appellant “put his hands around her
neck” and began pushing with both hands. Id. at 206. B.M. testified she had
difficulty breathing, and she scratched Appellant’s face. Id. Less than a
minute later, Appellant stood up and pulled B.M. into the kitchen. Id. B.M.
testified that Appellant then grabbed her shoulders, pulled her to the ground,
and “forcefully” pulled her arm behind her back until she heard a “bone
cracking sound.” Id. at 214-16.
B.M. testified that Appellant drove her to the hospital and remained in
the room with her. Id. at 216. Because she was afraid of Appellant, she
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1 Appellant’s request for a continuance, the Commonwealth’s argument in opposition thereto, and the trial court’s ruling are discussed in depth infra as it relates to Appellant’s appellate issues.
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reported that she had injured herself by tripping and falling. Id. An X-ray
confirmed that B.M. suffered a broken arm. Id. at 217.
Appellant testified in his own defense. He testified that he was at a Wal-
Mart buying Christmas presents when B.M. called him. Id. at 463. He testified
that she was crying, and she reported that she had fallen, resulting in her
dislocating her elbow. Id. He testified that he immediately went to her house,
and when he touched her elbow, she scratched him. Id. He testified that he
immediately drove B.M. to the hospital. Id. at 465. He indicated that he took
B.M. into the emergency room, parked the car, and smoked a cigarette. Id.
at 466. By the time he went to B.M.’s assigned room, two doctors were
already talking to her and taking an X-ray. Id. 466-71. Appellant testified
that B.M. told the doctors that she fell while wrapping presents. Id. at 471.
At the conclusion of trial, the jury found Appellant guilty of the charges
indicated supra, and the sentencing hearing was scheduled for September 26,
2025.
On August 20, 2025, after the jury’s verdict but before sentencing,
Appellant filed a counseled post-trial motion. Therein, Appellant indicated that,
on the morning of July 7, 2025, new counsel, Attorney Semke, was provided
with 800 text messages, which had been sent to or received by Appellant at
the York County Prison. However, Appellant contended that, during the trial,
he discovered there are additional text messages, which had been sent to or
received by Appellant while he was in prison, and copies of these text
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messages were not provided to defense counsel. Accordingly, Appellant
requested the trial court direct the York County Prison to provide Appellant
with all text messages sent to or received by Appellant since his incarceration
on January 18, 2023.
Following a hearing, by order entered on September 11, 2025, the trial
court granted Appellant’s motion and directed the York County Prison to, inter
alia, provide Appellant and his counsel with all text messages Appellant
participated in with all individuals, as well as a list of all outgoing phone calls
to B.M., for the period of January 18, 2023, to May 1, 2023. The sentencing
hearing was rescheduled for October 10, 2025.
On October 8, 2025, Appellant filed a motion seeking a continuance of
the sentencing hearing. Appellant indicated that the York County Prison had
provided the requested records, including a list of telephone calls. However,
Appellant sought to have certain telephone calls transcribed and required the
recordings thereof. The trial court granted the continuance and directed Via
Path Technologies, which provides services to the Commonwealth’s prisons,
to produce recordings of, inter alia, all calls with B.M. between 1/29/23 to
2/14/23.
On November 19, 2025, Appellant, along with his defense counsel,
proceeded to a sentencing hearing. At the conclusion of the hearing, the trial
court sentenced Appellant to an aggregate of eleven years to twenty-two
years in prison. The trial court provided Appellant with his post-sentence and
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appellate rights. On that same date, November 19, 2025, Appellant requested
a ten-day extension to file his post-sentence motion since counsel had just
received the recordings of the prison telephone calls earlier that morning. The
trial court granted the extension and indicated Appellant’s post-sentence
motion was due no later than December 9, 2025. See Pa.R.Crim.P.
720(B)(3)(b) (indicating the defendant may seek an extension to file a
supplemental post-sentence motion in the judge’s discretion as long as the
decision on the supplemental motion can be made in compliance with the time
limits of paragraph (B)(3) pertaining to the 120-day disposition period).
On December 9, 2025, Appellant filed a counseled post-sentence
motion. Therein, Appellant averred that, by the time Attorney Semke of the
Office of Conflict Counsel entered his appearance on behalf of Appellant, the
Commonwealth had already provided discovery to private counsel, Attorney
Graff. Appellant further averred that, thereafter, Attorney Semke requested
discovery from the Commonwealth on April 18, 2024, May 17, 2024, and
September 6, 2024. He also attempted to obtain discovery from Attorney
Graff, but he was unable to obtain the full discovery, which had been provided
by the Commonwealth to Attorney Graff.
Additionally, Appellant indicated that, on September 30, 2024, the
Commonwealth finally provided discovery to Attorney Semke, and on July 7,
2025, just before Appellant’s trial was set to begin, the Commonwealth
provided Attorney Semke with supplemental discovery containing
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approximately 800 text messages, which had been sent to and received by
Appellant while he was incarcerated at the York County Prison.
Appellant averred that, when his case was called for a jury trial on July
7, 2025, he requested a seven-day continuance; however, the trial court
denied the continuance. Appellant further averred that he requested the trial
court preclude the Commonwealth from introducing the text messages, which
were provided to Attorney Semke in an untimely fashion just before the start
of trial, but the trial court denied the motion.
Based on the aforementioned allegations, Appellant sought a new trial
on the basis that (1) the jury’s verdict was against the weight of the evidence,
(2) the trial court erred in denying his request for a continuance on July 7,
2025, and (3) pursuant to Pennsylvania Rule of Criminal Procedure 573, the
trial court erred in denying his motion to preclude the Commonwealth from
introducing evidence of the text messages, which were not provided to
Attorney Semke during discovery in a timely manner.
By order filed on December 17, 2025, the trial court denied Appellant’s
post-sentence motion,2 and this timely, counseled appeal followed on January
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2 Although the order was docketed on December 16, 2025, the docket entries
reveal notice thereof was not provided to the parties until December 17, 2025. Accordingly, we deem December 17, 2025, to be the date of entry of the order. See Pa.R.A.P. 108(a)(1) (“[I]n computing any period of time under these rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties[.]”). (Footnote Continued Next Page)
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16, 2026. All Pennsylvania Rule of Appellate Procedure 1925 requirements
have been adequately met.
Appellant sets forth the following issues in his “Statement of the
Questions Involved” (verbatim):
1. Whether the trial court abused its discretion in denying Appellant’s motion for continuance to review late-disclosed text messages, obtain additional phone recordings not provided in discovery, and prepare an alibi defense? 2. Whether the trial court erred in failing to find a violation of Pa.R.Crim.P. 573 and Brady v. Maryland, 373 U.S. 83 (1963), due to the Commonwealth’s failure to turn over all phone recordings related to the incident and the Commonwealth’s late disclosure of approximately 800 text messages immediately before trial, warranting dismissal or [other remedy] tailored to the circumstances?
Appellant’s Brief at 4 (suggested answers omitted).
In his first issue, Appellant contends the trial court abused its discretion
in denying Attorney Semke’s request for a seven-day continuance of trial,
which he made during the morning of July 7, 2025, the day trial was scheduled
to begin. Appellant averred the seven-day continuance was necessary since
Attorney Semke discovered “that approximately 800 text messages
exchanged between Appellant and [the victim, after the incident when
Appellant was in prison,] had never been produced to or reviewed with
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Accordingly, Appellant’s notice of appeal, which was filed thirty-days thereafter on January 16, 2026, was timely. See Pa.R.Crim.P. 720(A)(2)(a) (“If the defendant files a timely post-sentence motion, the notice of appeal shall be filed…(a) within 30 days of the entry of the order deciding the motion[.]”).
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Appellant.”3 Appellant’s Brief at 17. While Appellant acknowledges the trial
court granted him a twenty-four-hour continuance, he claims the continuance
was “manifestly unreasonable because counsel had less than twenty-four
hours to review approximately 800 previously unproduced text messages that
were central to the case.” Id. at 19. Appellant contends that, in denying his
request for a seven-day continuance, “[t]he trial court’s suggestion that the
messages could be reviewed adequately in ‘a couple of hours’ fundamentally
misunderstood what meaningful trial preparation entails.” Id. at 21.
He also claims that Attorney Semke reasonably believed he had a
complete discovery file, and when he independently discovered on the
morning of trial that some of the text messages were not in his possession,
the trial court should have given him a continuance of at least a week to review
and analyze the text messages as it related to Appellant’s alibi defense. Id.
at 22-23. He claims that he was prejudiced by the trial court’s failure to give
him a week-long continuance. Id. at 26-27.
Initially, we note the following:
Appellate review of a trial court’s continuance decision is deferential. The grant or denial of a motion for a continuance is within the sound discretion of the trial court and will be reversed
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3 In his “Statement of the Questions Involved,” as it pertains to his first issue,
Appellant references whether the trial court abused its discretion in not giving Appellant a continuance to “obtain additional phone recordings not provided in discovery.” Appellant’s Brief at 4. However, in the argument portion of his brief, Appellant focuses on whether the trial court abused its discretion in not providing Appellant with his requested seven-day continuance to review late- disclosed text messages to prepare for his alibi defense. We shall do so likewise.
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only upon a showing of an abuse of discretion. As we have consistently stated, an abuse of discretion is not merely an error of judgment. Rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record[.]
Commonwealth v. Brooks, 104 A.3d 466 (Pa. 2014) (quotations marks,
quotation, and citation omitted).
Regarding continuances in criminal cases, Pennsylvania Rule of Criminal
Procedure 106 provides, in pertinent part:
(A) The court or issuing authority may, in the interests of justice, grant a continuance, on its own motion, or on the motion of either party.
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(D) A motion for continuance on behalf of the defendant shall be made not later than 48 hours before the time set for the proceeding. A later motion shall be entertained only when the opportunity therefor did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it.
Pa.R.Crim.P. 106(A), (D).
This Court has observed that trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. However, the trial court exceeds the bounds of its discretion when it denies a continuance on the basis of an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay. Accordingly, we must examine the reasons presented to the trial court for requesting the continuance, as well as the trial court’s reasons for denying the request.
Commonwealth v. Norton, 144 A.3d 139, 143 (Pa.Super. 2016) (quotation
marks and quotations omitted).
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Relevantly, during the morning of July 7, 2025, when Appellant’s jury
trial was set to begin, the following exchange occurred:
ATTORNEY SEMKE: [A]s I prepared for trial, there was mention of text—I got all—we have hours upon hours of phone calls from the prison, and we’ve gotten many of them transcribed with [the] prior ADA this spring when we continued the case. But going through it, I started realizing there were references to a lot of text messages from the prison, which I didn’t recall seeing.
Now, again, I was not the first attorney on this case. It was [William] Graff. Upon receiving the case, we requested everything from [Attorney Graff]. As usual with Attorney Graff, it took quite a while. Meantime, we also filed a second continuance request with the Commonwealth. I’m not blaming them at all. I got everything. I thought I had everything. We, today, this morning, went through every single disk and download that we had, and I am missing approximately 250 pages of text messages that I’ve never received or reviewed with my client. And again, [I] should’ve been aware that they were referenced in discovery. I don’t believe I can go to trial without reviewing those with my client.
***
I would submit to you that I’m required to get a continuance [because of]…the lack of having these text messages.
THE COURT: Okay. And I understand that, but at least if I’m going to indicate that there’s a continuance, [the Commonwealth would also] then have the notice [of Appellant’s alibi defense].[4]
ATTORNEY SEMKE: Okay. Got it. I can have [the alibi defense notice] done here momentarily.
THE COURT: Great. All right. So, we’ll do that first and then we’ll see where we go with the other stuff.
ATTORNEY SEMKE: All right. Thank you.
***
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4 Prior to requesting the continuance due to the text messages, Attorney Semke noted that he mistakenly forgot to provide the Commonwealth with notice of Appellant’s alibi defense. N.T., 7/7/25, at 6-8. He indicated that he could prepare it immediately and give it to the Commonwealth. Id.
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ATTORNEY SEMKE: Your Honor, [the alibi defense notice] is complete, and I’m emailing it to [the Commonwealth]….It is a gross error by myself, Your Honor. When we get these cases late, I don’t have my tickler set up as far as when [the alibi defense] notice has to be sent. It was listed for trial long before I was even appointed THE COURT: Okay. Well, here is the other problem that I have, okay, who had the case within 30 days after arraignment?
ATTORNEY SEMKE: [William] Graff. THE COURT: Okay. Well, and when did you get the case? ATTORNEY SEMKE: I got the—I [was] initially assigned the case at the end of April of 2024. I did not speak to [Appellant] until June, so that’s on—but I did—in June is when [Appellant] notified me of the defense.
[ADA]: Attorney Semke entered his appearance [on] April 18th of 2024.
***
ATTORNEY SEMKE: [In any event,] I think we have to continue [the jury trial] on the lack of the discovery of the messages. I believe the [Commonwealth] can quickly investigate [Appellant’s alibi defense], and then we can—
THE COURT: When did the messages—when were those provided to—
ATTORNEY SEMKE: Those were sent to—well, this morning.
They emailed me to—this morning. We had a discussion, about 8:30. She immediately sent them to me probably about 9:10. They have—the notice [of the text messages] was sent to—it was sent to [William] Graff. I believed I got everything from [Attorney Graff]. We did a separate independent discovery request.
I am not blaming the Commonwealth. There is so much electronic information, but we never received this. I had my paralegal go through every single entry. There are two—I mean, 200 pages of text messages mostly with the victim. I have to review those.
Judge, I understand that we don’t like defense counsel to just come in here and say, hey, look, I’m ineffective, but this will come back if we do not take a short continuance. It will absolutely—
THE COURT: Can you be ready—
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ATTORNEY SEMKE: --come back. THE COURT: --by the second trial week? Because you can be ready by Monday.
[ADA]: Your Honor, the problem with that is, which Defense—
THE COURT: The witnesses. [ADA]: --knows is that— THE COURT: Yes. [ADA]: --the doctor’s unavailable the second week. THE COURT: So, you have the doctor coming in? ATTORNEY SEMKE: I am aware of that; however, I did not get to speak to the doctor. We played phone tag this morning. If you’re—I am willing to see if he’s available via Zoom, that would be fine. And secondly, if I talk to him, there’s still a good chance we’ll be able to stipulate to his testimony. I just haven’t had a chance to speak to him. We’ve been playing phone tag.
Obviously, I don’t know—I mean, I guess you’re going to rule on the alibi regardless today, but, yes, on the—I can be ready by Monday.
[ADA]: Your Honor, I would ask if Attorney Semke can be ready in 24 hours, and I know it’s not ideal to keep other cases ready. This is a very old case. The Commonwealth is already prejudiced by the length of that, and, obviously, the jury won’t know why we’re trying it a few years late and—
ATTORNEY SEMKE: Your Honor, that is—you’re just asking for it to come back. 24 hours’ notice on 250 pages, you’re just asking—
THE COURT: Attorney Semke, here is the problem that I have, okay? You still don’t have the alibi notice done. I don’t know why, when you realized this, you didn’t put it in writing—
ATTORNEY SEMKE: Judge, the— THE COURT: --the witnesses and the time. ATTORNEY SEMKE: --9:00 this morning. You sent your notice at 9:30.
THE COURT: When did you know that you had not done the alibi notice?
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ATTORNEY SEMKE: 9:00 is when I told—I actually spoke to the witness….
THE COURT: It’s a 24-hour notice. ATTORNEY SEMKE: --completely done. It just needs to be emailed.
[ADA]: Your Honor, thank you for saying that you’re inclined [sic]. I would just like to finish putting a couple things on the record….Specifically, with the prejudice to the Commonwealth, I think that the victim—we have concerns about her readiness at a month later should we not be able to go next week. All of our witnesses are ready to go this week, and that is one of the main reasons we’re concerned about prejudice.
And then Attorney Semke and [Appellant] did put on the record, at two previous court dates that they were ready for trial, discovery was complete, and there would be no pre-trial motions other than a motion in limine. So, I think at this point that’s what we’d be asking the Court, to allow him this time to finish the preparations, and we can all be ready for trial in 24 hours.
THE COURT: Well, tomorrow morning at 9:00. [ADA]: Yes. THE COURT: I want the [alibi defense] notice—within the next couple of hours.
ATTORNEY SEMKE: You can have it in 30 seconds, Your Honor, but we—9:00 a.m. tomorrow is not—I was not—it was not my fault that I did not receive these discoveries—this information. It’s not the Commonwealth’s fault, either. It happened. I made the necessary request. I never got it. Let’s make that clear.
THE COURT: Okay. Well, again, even if it’s 200 pages, it’s text messages, you can read a minute a page. It can take you, at most, two to three hours to read through those text messages.
ATTORNEY SEMKE: Okay. But, again, we have thousands of other information I would have to review to corroborate, see if I need witnesses on this information. You’re saying, oh, just read it and deal with it, don’t do anything about it. You can’t do anything about it, but you can read them. That’s not sufficient, Your Honor.
THE COURT: Well, Attorney Semke…what witnesses?
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ATTORNEY SEMKE: We don’t know--…9:00 a.m. is not [a reasonable solution], and you’re asking this to come flying back at you because of something that we can just wait until Monday.
THE COURT: No, because we can’t wait until Monday, Attorney Semke, because their witnesses are not available Monday.
***
Okay. Well, I’ll tell you what we’re going to do. We’re going to come back here at 2:00 [p.m. today]. I expect that you will have the complete notice of alibi filed with copies for the Commonwealth and for me. That gives you two hours. You can eat lunch while you read through those emails, and if you feel there are other witnesses that you need to call, you can at least review them enough to know whether there’s anybody other than your client and his mom that you would even know or be able to reach, because I’m not going to delay it for some unknown nebulous witness that you can’t identify or don’t know where to get or don’t know where to reach, that we’re not going to have anyway.
ATTORNEY SEMKE: Based on information that I do not have, yes.
***
[ADA]: Your Honor, I think what Defense is trying to say is that we only supplied them with some of the messages—
ATTORNEY SEMKE: No, that’s not what we are saying. [ADA]: Then, I don’t understand. ATTORNEY SEMKE: He is correct. We’ve been prevented [sic] hundreds of hours of phone calls. [I] [p]reviously convinced the DA to print me out transcripts of ones that they thought were relevant. They did. All right? I presented them to my Commonwealth [sic]. That was probably in May. Okay?
He has since said, hey, look, all these other phone calls, I need those, as well. Those require me to—that we believe they were in the disks or—and I would—I’d have to subpoena them directly from the district—from the prison. I had my absolute intentions to go through and figure out where he’s looking. I narrowed it down, but not until last week.
THE COURT: Well, here’s the thing, we’d be picking a jury this afternoon, and the witness would then be testifying and then,
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before you get to your cross-examination, and would be lunch tomorrow. So, that gives you time tonight—could be all night, I don’t care—
ATTORNEY SEMKE: Your Honor, that does not give me time to get phone calls that haven’t been provided—he’s saying that there’s phone calls that we don’t even have.
[ADA]: Your Honor, I’m sorry, but in regards to the phone calls, that is not a new issue. That is—
THE COURT: It’s not a new issue. [ADA]: --an issue that was previously raised. We narrowed it down to the ones in the transcript, and we did tell him again this morning that those were the ones, obviously unless something obscure would come up on rebuttal. And on the record at the call of the list, Judge Vedder addressed a motion—that the Defendant filed a pro se motion to have Attorney Semke removed. They both agreed that there were no issues. The motion specifically raised there’s things I asked him to do he hasn’t done, and they both agreed it was moot, and the Defendant withdrew the motion.
ATTORNEY SEMKE: I thought I could…get it done and I didn’t.
[ADA]: So, I think at this point there’s more time being spent trying to delay the trial—
THE COURT: Yep. [ADA]:--that the text messages could’ve been reviewed this morning, actually. So, we would just ask the Court to continue with the plan I believe that was previously stated.
THE COURT: Yep. So, we will reconvene at 2:00. Counsel will have the exact wording of the alibi notice to provide to the Court so we can see if there’s even anything that we need to consider.
ATTORNEY SEMKE: Your Honor, I would just put on the record that I would be asking for a continuance until at least 9:00 a.m. tomorrow morning. If that’s the least amount you’ll give me, that what we—
THE COURT: Well, essentially, it would be because we’d only be picking a jury this afternoon--…and we’d be starting [trial] at 9:00 a.m. tomorrow morning.
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ATTORNEY SEMKE: Your Honor, that would be taking away time that I can do from getting—preparing and meeting with my client out at the prison. I would just ask for 9:00 a.m.
***
THE COURT: Do you have any objection to starting voir dire at 9:00 a.m. tomorrow morning?
ATTORNEY SEMKE: All right. Thank you. [ADA]: No. THE COURT: No, okay. We will start voir dire at—so I would like counsel here at 8:30 to review the jury questionnaires. The jurors are probably going to get here around 9:00….I will come on the bench at 9:00 [a.m.], so if there’s any issues we need to address related to those text messages, we can address them, okay?
N.T., 7/7/25, at 7-32.
Later that afternoon, at 2:00 p.m. on July 7, 2025, the trial court
reconvened to review Appellant’s notice of alibi, and during the hearing,
Attorney Semke advised the trial court that he had the opportunity to speak
with the doctor, who was a Commonwealth witness. Id. at 43. He indicated
that Appellant would be stipulating to the doctor’s testimony. Id. Attorney
Semke then asked the trial court to continue trial until Monday, July 14, 2025.
Id. at 44. He acknowledged that the text messages at issue had been sent
to Attorney Graff; however, Attorney Graff did not provide them to Attorney
Semke. Id. Attorney Semke acknowledged the Commonwealth was not at
fault, and “it just happened;” however, he averred the issue could be “resolved
by a short continuance to Monday.” Id.
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In response, the ADA noted he had just been assigned to Appellant’s
case, and he read the text messages “in a short period of time.” Id. The trial
court denied Attorney Semke’s request to continue the trial until Monday, July
14, 2025, and the trial court ruled that voir dire would begin at 9:00 a.m. the
following morning on July 8, 2025. Id. To ensure that Appellant and Attorney
Semke had adequate time to review and consult regarding the text messages,
the trial court informed the sheriff that Appellant was not to be taken back to
the prison immediately; but rather, he was to be given “an hour or so” to
review the text messages with counsel, who could then go to the prison if he
needed more time to review the messages with Appellant. Id.
In explaining its ruling on the record, the trial court noted that Attorney
Semke, who was appointed as counsel in April of 2024, knew there were text
messages based on references made in phone calls, which counsel had
received in the spring of 2025. Id. at 55. The trial court further noted that
Appellant, who was a participant in the text messages, certainly knew about
the text messages, and the text messages were undisputedly provided to
Attorney Graff. Id. Moreover, in October of 2024, the Commonwealth
provided Attorney Semke with the police report, which referenced the
existence of hundreds of prison text messages. Id. at 56. Thus, the trial court
concluded Appellant did not explain why his “eleventh hour” request for a
seven-day continuance to review text messages, of which he was previously
aware, was justifiable.
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Additionally, in explaining the reasons for its ruling, the trial court
indicated the following in its Pa.R.A.P. 1925(a) opinion:
[I]t became clear [to the court] that the messages in question were not so voluminous that Attorney Semke could not review them in a couple of hours. Given that, the trial court did allow Attorney Semke time on July 7, 2025, to review the text messages over lunch and to draft the alibi notice. Notably, Attorney Semke had not just become counsel. He had been the counsel of record since April of 2024. He had over a year to obtain anything from prior counsel, to file his alibi defense, and to obtain any discovery that was missing. At this point in time, potential jurors were waiting downstairs to begin voir dire at a trial. Both counsel had indicated at Call of the List previously that the case was ready for trial. The Commonwealth objected to the continuance.
[Appellant’s] first issue on appeal hinges on whether the trial court abused its discretion in denying [Appellant’s] continuance request [of a week] after the Commonwealth provided last-minute discovery of text messages.
***
The court notes that the text messages not provided to Defense would not have impacted the outcome of the trial. The [trial] court [notes there is a separation] between the messages in the possession of the Commonwealth and those that were not. Not all the text messages had been provided from the prison to the Commonwealth, as evidenced by the court orders that were entered post-trial. The text messages provided to Defense on the eve of trial were limited in number and easily reviewable to defense counsel in the time provided. Additionally, [Attorney Semke] had from April 2024 to July 2025 to resolve the issues with discovery, [of which he should have been aware given the text messages were referenced in the police report and transcribed prison phone calls].
As noted, the standard for an “abuse of discretion” is more than an error of judgment. In order to prove an “abuse of discretion,” [Appellant] must demonstrate that the [trial] court’s decision was “manifestly unreasonable.” However, the trial court does not find that [Appellant] has met this burden….[The trial court gave Attorney Semke] hours to review the text messages, in fact, almost a whole day to review them. [Appellant] knew or
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should have known what text messages he had sent or received and known the content of the telephone conversations he had. [Appellant] and [Attorney Semke] both knew that prison call and messages were recorded.
Trial Court Opinion, filed 3/18/26, at 4-8.
We find no abuse of discretion. As the trial court noted, Appellant was
aware that he had exchanged text messages with the victim since the
inception of this case. Also, Attorney Semke, who was appointed more than
a year before the jury trial, was aware the text messages existed based on
references made in the police report, which he received in October of 2024,
approximately nine months prior to trial. Further, by Attorney Semke’s own
admission, transcribed prison telephone calls, which Appellant and Attorney
Semke had in their possession by the spring of 2025, referenced the text
messages. N.T., 7/7/25, at 7.
Appellant’s failure to act resulted in an “eve of trial” continuance
request, which could have been advanced much sooner. Still, the trial court
granted Appellant a twenty-four-hour continuance of trial, to which Appellant
initially agreed,5 and the trial court made accommodation for Appellant to
remain at the courthouse for at least an hour to review the text messages
with counsel. Thus, while the trial court did not give Appellant’s requested
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5 As indicated supra, although Appellant initially agreed to the twenty-four-
hour continuance, after the court recessed and Attorney Semke had an opportunity to review the text messages, Appellant subsequently renewed his request for a one-week continuance when the trial court reconvened the hearing later in the afternoon on that same date.
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one week continuance, the trial court made reasonable accommodations for
Appellant and Attorney Semke. Simply put, Appellant has not demonstrated
that the trial court exceeded the bounds of its discretion in denying Appellant’s
request for a one-week continuance. See Norton, supra.
Moreover, we note that, to demonstrate prejudice from the trial court’s
ruling, Appellant “must be able to show specifically in what manner he was
unable to prepare his defense or how he would have prepared differently had
he been given more time.” Commonwealth v. Ross, 57 A.3d 85, 91
(Pa.Super. 2012) (en banc) (citation omitted). Here, Appellant baldly
contends that, if counsel had more time to review the text messages, he
“might well have uncovered additional messages that either exculpated
[Appellant] or significantly undermined the reliability of those the
Commonwealth introduced.” Appellant’s Brief at 27. He also asserts his
counsel “lacked the time and materials necessary to conduct effective cross-
examination of the [victim].” Id. However, in light of such bald assertions
without specificity, we conclude Appellant has failed to demonstrate he was
prejudiced by the trial court’s ruling. Ross, supra.
In his second issue, Appellant claims he is entitled to a new trial
pursuant to Commonwealth v. Brady, 373 U.S. 83 (1963), and
Pennsylvania Rule of Criminal Procedure 573 because the Commonwealth
21
failed to provide Attorney Semke with the 800 text messages discussed supra
in a timely manner.6
Initially, regarding his Brady claim, Appellant asserts that the 800 text
messages exchanged between B.M. and Appellant during Appellant’s
incarceration from January to May of 2023 constituted impeachment evidence.
He additionally claims the 800 text messages were “suppressed” by the
Commonwealth and not provided to Attorney Semke, who filed supplemental
discovery requests, in a timely manner. Further, Appellant claims that, but
for the violation, the outcome of his trial would have been different since
counsel would have had more time to analyze the significance of the text
messages.
In reviewing a trial court’s denial of a new trial based on a Brady claim,
we recognize that this issue presents a question of law, for which our standard
of review is de novo and our scope of review is plenary. See Commonwealth
v. Bagnall, 235 A.3d 1075, 1084 (Pa. 2020).
Our Supreme Court has recently explained the following:
Brady imposes upon the Commonwealth an affirmative duty to disclose to the defendant all favorable evidence material
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6 In his “Statement of the Questions Involved,” as it pertains to the statement
of his second issue, Appellant references the Commonwealth’s failure to turn over all phone recordings. See Appellant’s Brief at 4. However, in the argument portion of his brief, Appellant focuses on the Commonwealth’s failure to provide new counsel, Attorney Semke, with all text messages between Appellant and the victim, and we shall do so likewise. In any event, for the reasons discussed infra, Appellant is not entitled to relief as it relates to his prison phone recordings.
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to guilt or punishment, even in the absence of a request by the defendant for the same. A defendant must prove the following to establish a Brady violation: first, that the evidence at issue was favorable to the defendant; second, that the prosecution suppressed the evidence, either willfully or inadvertently and finally, that the evidence was material. Evidence is considered to be favorable to a defendant when it is proven that if disclosed and used effectively, it may make the difference between conviction and acquittal. Commonwealth v. Chambers, 807 A.2d 872, 888 (Pa. 2002). Evidence is material for Brady purposes when its absence caused prejudice. Id. This is a high bar, as “the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality” in the Brady context. Id. at 887
Commonwealth v. Thomas, 323 A.3d 611, 638-39 (Pa. 2024) (citations
omitted).
Further, as our Supreme Court has recognized, “no Brady violation
occurs where the parties had equal access to the information or if the
defendant knew or could have uncovered such evidence with reasonable
diligence.” Commonwealth v. Morris, 822 A.2d 684, 696 (Pa. 2003)
(quotation omitted). Further, there is no Brady violation if the “evidence was
available to the defense from other sources.” Commonwealth v. Johnson,
353 A.3d 609, 632 (Pa. 2026) (footnote omitted).
In the case sub judice, on July 7, 2025, during the attorneys’ arguments
regarding whether the trial court should continue the trial as it relates to the
text messages, the trial court noted that, since Attorney Semke was on notice
that the text messages existed, and since the messages were “prison
messages,” the defense had equal access to them. N.T., 7/7/25, at 56. The
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ADA agreed with the trial court and argued that, just as the Commonwealth
asked the prison for the text messages, so could Attorney Semke have sought
the prison text messages at any time. Id.
At this point, Attorney Semke alleged there had been a discovery
violation because, although the text messages had been provided to Attorney
Graff, the Commonwealth failed to provide the text messages to Attorney
Semke even after he asked for all discovery from the Commonwealth. Id. at
57. He specifically averred that there was a Brady violation because all text
messages were not provided directly to him by the Commonwealth during
discovery. Id. Thus, Attorney Semke ultimately argued that the text
messages should be excluded from evidence or Appellant should be granted a
seven-day continuance of trial to allow for further review of the text messages.
Id.
At this point, the trial court concluded there was no discovery violation,
and the trial court denied Appellant’s motion to exclude and/or for a
continuance beyond July 8, 2025. Id.
We agree with the trial court that there was no Brady violation.
Specifically, as the trial court determined, Appellant, who was a participant in
the text messages, was aware the text messages existed. Further, the text
messages were “prison messages” to which the defense had equal access as
the Commonwealth. See Morris, supra. Appellant could have secured
copies of the text messages from the prison or its service providers. In fact,
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when Appellant wanted to examine his prison phone calls after his trial, he
secured a subpoena from the trial court directing Via Path Technologies, which
provides services to the Commonwealth’s prisons, to provide the calls to his
counsel. Appellant has not explained why he could not have done the same
for the text messages prior to trial. Accordingly, on this basis, we find the
trial court did not err in finding no violation of Brady.7 See Johnson, supra;
Morris, supra.
Regarding Appellant’s claim he is entitled to a new trial pursuant to
Pa.R.Crim.P. 573, we note that Appellant suggests the Commonwealth’s
failure to provide written copies of the text messages to Attorney Semke until
the morning of trial violates Rule 573. Specifically, he suggests the trial court
failed to provide Appellant with a meaningful remedy under Pa.R.Crim.P.
573(E).
Pennsylvania Rule of Criminal Procedure 573 provides, in pertinent part:
(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
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7 Moreover, as the trial court indicated, Appellant failed to prove that the information contained in the text messages was exculpatory. See Trial Court Opinion, filed 3/18/26, at 9 (“Brady does not require the disclosure of information ‘that is not exculpatory but might merely form the groundwork for possible arguments or defenses[.]’”) (quotation omitted)).
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Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
***
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence[.]
***
(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)(1)(f), (E) (emphasis in original).
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. Pa.R.Crim.P. 573(E). 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 pursuant to Rule 573(E). 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 alleged late disclosure. [See] Commonwealth v. Chambers, 599 A.2d 630, 636–38 (Pa. 1991) (no error in denial of mistrial motion for untimely disclosure where appellant cannot demonstrate prejudice).
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.Super. 2003) (citations,
quotation marks, and quotations omitted).
In the case sub judice, as indicated supra, the trial court determined
that there was ample notice of the existence of the text messages provided to
Appellant’s initial attorney (Attorney Graff), Appellant (who participated in the
26
text messages), and Attorney Semke, who had in his possession the police
report and transcripts of telephone calls referencing the text messages well
before July 7, 2025, the scheduled date of trial. In any event, the trial court
provided Appellant with a remedy to address any late disclosure of the text
messages; namely, the trial court gave Appellant a twenty-four-hour
continuance and directed the sheriff to allow Appellant to remain at the
courthouse for at least an hour to review the text messages with Attorney
Semke. See Pa.R.Crim.P. 573(E) (setting forth remedies for a party’s violation
of Rule 573). We find no abuse of discretion in this regard. See Causey,
supra.
Further, particularly give that Appellant had participated in the text
messages, and, thus, should have been reasonably aware of the content
thereof, the trial court determined that Appellant failed to demonstrate how a
more timely disclosure of a written copy of the text messages would have
affected Appellant’s trial strategy or how he was otherwise prejudiced by the
alleged late disclosure. See Causey, supra. Again, we find no abuse of
discretion. See id.
For all of the foregoing reasons, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 08/24/2026