Commonwealth v. Maldonodo, 1191 EDA 2015

• Decision Date: 12 September 2017
• Docket Number: No. 1191 EDA 2015,1191 EDA 2015
• Citation: 173 A.3d 769
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Leroy MALDONODO, Appellee
• Court: Pennsylvania Superior Court

173 A.3d 769

COMMONWEALTH of Pennsylvania, Appellant

v.Leroy MALDONODO, Appellee

No. 1191 EDA 2015

Superior Court of Pennsylvania.

Argued March 21, 2017

Filed September 12, 2017

Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

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 informed counsel at that time that it intended to introduce a total of six minutes from two of these phone calls.

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, ¶ 8 (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, ¶ 9. Appellee rejected this notion, claiming that it would "force [Appellee] to provide evidence against himself and to aid in his own prosecution[.]" Id . at 3, ¶ 1.

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." Pa.R.Crim.P. 573(A). Rule 573 states that informal discovery must take place before a party may request discovery via motion. Upon motion by the defendant, the rule delineates the items that the Commonwealth must supply:

(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.

Pa.R.Crim.P. 573.

Rule 573 does not abridge or limit the Commonwealth's duty to provide discovery pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. "In Brady , the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." Commonwealth v. Burke , 566 Pa. 402, 781 A.2d 1136, 1141 (2001) (quotation marks omitted). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

However, the rule imposes greater obligations upon prosecutors than the Brady requirements. For instance, (B)(1)(b) requires production of a defendant's written confession. Nevertheless, our cases frequently analyze whether a particular discovery sanction was justified by analyzing whether the evidence was required to be disclosed pursuant to Brady . See e.g. Commonwealth v. Robinson , 122 A.3d 367 (Pa.Super. 2015) (reversing order precluding...