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HomeMy WebLinkAboutCP-21-CR-0000207-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V.: : CHRISTINE DIESPOSTI : NO. CP-21-CRIMINAL 207 – 2009 : : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., October , 2010 The Commonwealth has filed this timely appeal from our order of July 15, 2010, which granted the defendant’s post sentence motion for a new trial. In its appeal the Commonwealth alleges that 1) we lacked jurisdiction to enter an order granting the defendant relief because our order was filed 121 days after her motion, and 2) we erred in ruling that our prior decision precluding the defendant’s expert witnesses from testifying required a new trial. Our order granting the defendant’s post sentence motion was executed on July 15, th 2010, the 120 day after the motion was filed. However, for reasons we cannot explain it was not filed until the following morning. With regard to the other alleged error, we will start with a brief recitation of the facts. Immediately prior to jury selection on November 2, 2009 we held argument on the Commonwealth’s motion in limine to preclude the testimony of the defendant’s expert witnesses. The reasons for the motion were recounted by the assistant district attorney as follows: The Commonwealth is asking this Court to preclude Dr. Gengo’s testimony and Jan Semenoff’s testimony based on two reasons. . . . CP-21-CRIMINAL 207 - 2009 Under Rules of Discovery, Rule 573 (e), this Court has the discretion, and it is an abuse of discretion standard, to preclude the testimony of both potential defense experts, and the Commonwealth is asking this Court to do so for the following reasons. th This case was arraigned back on March 19, 2009, at which time the Commonwealth, in writing, conforming to the rules of informal discovery, requested this Defendant to give us the names of any expert witnesses and reports and materials upon which they rely. Now, since March of 2009, the defendant secured a continuance in May of nd 2009, June of 2009, and August of 2009. On September 22, 2009, this Defendant filed a motion to set trial for a specific date so he could obtain flight reservations for this witness, and the Court scheduled it to start th September 28, 2009. . . . In September, we still didn’t have any expert information . . . and by the way, the defense then secured a continuance. . . . th On October 27, Mr. McShane and I exchanged a series of e-mails, where th . . . I again asked for these reports. October 29, 2009, Mr. Adams filed a th motion to compel and motion to preclude. At 3:46 on October 29, the information was faxed to us. That left the Commonwealth one business day to review the reports. At 9:56 this morning – and I note it is 10:02 – we received the medical reports upon which his experts relied. I am not asking for a continuance. I am asking this Court to preclude those expert witnesses. I would not do so in every case. But given that so many continuances have been secured by the defense, and this should have been provided when the Defendant was ready to go to trial on September th 28, and a month and a day later we get this information, and its been a year since the date of offense, that I think it is well within your discretion 1 to grant the relief requested. We explained our rationale for precluding the expert testimony: My decision is based upon the fact that this appears to be a tactic to try the case by surprise. . . . The fact that this case was scheduled for trial to start to pick a jury in September, more than a month ago, and but for a medical emergency on 1 Transcript of Proceedings, November 2 – 4, 2009, pp. 4 – 6. 2 CP-21-CRIMINAL 207 - 2009 your part it would have gone, there is no good reason not to have had your reports by then and given them to the Commonwealth. Had the Commonwealth made the request at that point in time, not at the time of the fourth continuance because of your medical emergency, made the request to preclude the experts, I more than likely would have granted a continuance to today. They would have had the material then. They would have had the opportunity to prepare a rebuttal to your defense. But the fact that you sat on everything until the day before trial, and the fact that this would be a fifth continuance, for whatever reason, the time 2 has come to try the case, and that’s why I have granted the motion. The case of Commonwealth v. Malone, 356 PA Super 281, 514 A.2d 612 (Pa.Super. 1986) was not brought to our attention until post trial motions were filed. In Malone the Superior Court held that the trial court abused its discretion in precluding testimony because of the defendant’s failure to provide discovery. The Malone court held: “The Rule applies only if the Commonwealth files a motion for pre-trial discovery and alleges the materiality of the information requested to the 3 preparation of its case.” 514 A.2d at 613. The Court went on to state: . . . In view of appellant’s version of the alleged crime the remedy . . . imposed by the court was too severe. A continuance or recess would have been reasonable. Id. We were satisfied that the defendant had purposely “sandbagged” the Commonwealth by not disclosing the expert reports until the very last minute. However, the Commonwealth did not point out, nor could we find, any meaningful distinction 2 Transcript of Proceedings, November 2 - 4, 2009, pp. 18 – 19. 3 The Rule at issue in Malone was Pa.R.Crim.P. 305 which has been replaced by Pa.R.Crim.P. 573. The language at issue is identical in both Rules. 3 CP-21-CRIMINAL 207 - 2009 4 between Malone and the case at bar. While we felt that the evidence of defendant’s guilt was overwhelming, without being able to distinguish Malone we had no alternative but to grant her request for a new trial. _________________ ________________ DATE Edward E. Guido, J. Joshua M. Yohe, Esquire Justin J. McShane, Esquire :sld 4 The Commonwealth argued that it did file a motion to compel discovery. However, the motion was not filed until the eve of trial. Furthermore, the requested discovery was provided within hours after the motion was filed. 4