Opinion
J-S08031-17 No. 916 WDA 2016
02-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. BILLY RAY NAILL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 25, 2016
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000343-2015 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Billy Ray Naill, appeals from the judgment of sentence entered in the Somerset County Court of Common Pleas, following his jury trial convictions of criminal mischief, criminal attempt—theft, and two counts of criminal conspiracy. We affirm.
18 Pa.C.S.A. §§ 3304(a)(1), 901(a), and 903(a)(1), respectively.
The relevant facts and procedural history of this case are as follows. On December 16, 2014, police received a complaint about an attempted theft at First Commonwealth Bank. Upon arrival at the scene, police discovered someone had tried to remove the drive-up ATM machine and caused extensive damage in the process. Police received surveillance video from the bank, which revealed several individuals tie a chain around the ATM machine, attach the chain to the trunk area of a vehicle, and attempt to pull the ATM from the ground to access its contents. Based on the surveillance video, police were able to identify the vehicle and its owner, who had reported the vehicle as stolen. Subsequent investigation into the stolen vehicle and the ATM incident led to Appellant's arrest.
On June 16, 2015, the Commonwealth charged Appellant with criminal mischief, conspiracy to commit criminal mischief, criminal attempt—theft, loitering and prowling at nighttime, and conspiracy to commit unauthorized use of an automobile. On December 31, 2015, four days prior to jury selection, Appellant's counsel learned the Commonwealth intended to present the testimony of Appellant's former cellmate, Joseph Bockes, about inculpatory statements Appellant had made. Counsel immediately attempted to contact the Commonwealth to discuss Mr. Bockes' testimony; however, counsel was unsuccessful. On January 4, 2016, the date of jury selection, counsel brought up the issue of Mr. Bockes' testimony in court. The Commonwealth subsequently agreed not to call Mr. Bockes as a witness or to refer to him in any way at trial. Appellant's counsel acknowledged this remedy was acceptable and did not ask for a continuance. The parties subsequently proceeded with trial, and the jury convicted Appellant on January 6, 2016, of criminal mischief, conspiracy to commit criminal mischief, criminal attempt—theft, and conspiracy to commit unauthorized use of an automobile.
On January 25, 2016, the court sentenced Appellant to an aggregate term of eighteen (18) to sixty (60) months' imprisonment. At the sentencing hearing, counsel raised a motion for extraordinary relief and/or a new trial, based on the Commonwealth's failure to disclose its intent to use Mr. Bockes as a witness at trial. The court denied the motion that same day. On February 4, 2016, Appellant filed a post-sentence motion, which again asked for a new trial based on the Commonwealth's failure to inform Appellant about Mr. Bockes' intended testimony. The court denied relief on May 27, 2016. Appellant timely filed a notice of appeal on June 21, 2016, and an amended notice of appeal on June 23, 2016. On June 28, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on July 12, 2016.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT'S REFUSAL TO CONSIDER A MOTION TO CONTINUE AS WELL AS ITS REFUSAL TO DECLARE A MISTRIAL WHEN EVIDENCE OF THE COMMONWEALTH'S FAILURE TO PROVIDE PRETRIAL DISCOVERY CAME TO LIGHT IN THIS CASE, VIOLATED [APPELLANT'S] RIGHT TO A FAIR TRIAL[?](Appellant's Brief at 4).
Our standard review of the grant or denial of a motion for a continuance is as follows:
The grant or denial of a motion for a continuance is within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion. 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. Antidormi , 84 A.3d 736, 745 (Pa.Super. 2014), appeal denied, 626 Pa. 681, 95 A.3d 275 (2014) (internal citations and quotation marks omitted).
Additionally, our standard of review of a court's denial of a motion for mistrial is as follows:
A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.Commonwealth v. Tejeda , 834 A.2d 619, 623 (Pa.Super. 2003) (internal citations and footnote omitted).
Pennsylvania Rule of Criminal Procedure 573 provides in pertinent part:
Rule 573. Pretrial Discovery and Inspection
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(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.
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(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;
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Pa.R.Crim.P. 573(B)(1)(b), (E). "The purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial. Trial by ambush is contrary to the spirit and letter of those rules and cannot be condoned." Commonwealth v. Manchas , 633 A.2d 618, 625 (Pa.Super. 1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994) (internal citations omitted). "[Rule 573(E)] gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements." Commonwealth v. Galloway , 771 A.2d 65, 68 (Pa.Super. 2001). Importantly:
(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.
A defendant seeking relief from a discovery violation must demonstrate prejudice. A violation of discovery does not automatically entitle [an] 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.Commonwealth v. Causey , 833 A.2d 165, 171 (Pa.Super. 2003), appeal denied, 577 Pa. 732, 848 A.2d 927 (2004) (internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable D. Gregory Geary, we conclude Appellant's issue on appeal merits no relief. The trial court opinion fully discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed August 17, 2016, at 2-4) (finding: with respect to court's alleged denial of Appellant's continuance motion based on incomplete discovery packet, record reveals counsel did not request continuance on this basis; in fact, review of record demonstrates court did not deny single continuance request in case; prior to jury selection, Commonwealth admitted failure to inform Appellant of potential inculpatory testimony of Appellant's former cellmate, Mr. Bockes; after discussion in court, Commonwealth agreed not to call Mr. Bockes as witness during trial or present any evidence related to Mr. Bockes; Appellant's counsel then stated on record that this remedy was sufficient and no continuance motion was necessary; with respect to court's alleged denial of Appellant's motion for mistrial based on incomplete discovery packet, record reveals Appellant did not move for mistrial on this basis; review of trial transcript reveals Appellant moved for mistrial twice during trial, and both motions for mistrial were unrelated to Commonwealth's failure to provide complete discovery packet; even if Appellant had moved for mistrial based on incomplete discovery packet, Appellant failed to demonstrate he suffered prejudice or identify items Commonwealth did not include in discovery packet beyond intended testimony of Mr. Bockes; court cannot order new trial based on Appellant's generalized hunch that undisclosed evidence beneficial to Appellant exists; thus, Appellant's claim that court improperly denied his continuance motion and motion for mistrial warrants no relief). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/13/2017
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