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HomeMy WebLinkAbout95-0263 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 95-0263 CRIMINAL TERM : : SHELDON T. BROOKS : CF~RGE: FORMER CONVICT NOT TO OTN: E075224-2 : OWN A FIREARM IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of December, 1995, after careful consideration of Defendant's post-sentence motion in the form of a motion for judgment of acquittal, a motion for a new trial, a "[m]otion challenging the Jurisdiction of this Court," and a motion to modify sentence, and of the briefs submitted on the matter, for the reasons stated in the accompany Opinion, the motion is DENIED. BY THE COURT, J~ Wesley 01~, dr., Jr ~ Jonathan R. Birbeck, Esq. Sr. Assistant District Attorney William C. Vohs, Esq. Court-appointed attorney for Defendant :rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 95-0263 CRIMINAL TERM : : SHELDON T. BROOKS : CHARGE: FORMER CONVICT NOT TO OTN: E075224-2 : OWN A FIREARM IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In this criminal case, Defendant has filed a post-sentence motion following a jury trial in which he was found guilty of violating Section 6105 of the Crimes Code (former convict not to own firearm).~ The post-sentence motion included a motion for judgment of acquittal, a motion for a new trial, a "[m]otion challenging the jurisdiction of this court," and a motion to modify sentence.2 The grounds for the post-sentence motion in these respects were stated as follows: Motion for Judqment of Acquittal The evidence was insufficient, as a matter of law, to sustain the conviction for Former Convict Not to Own a Firearm. An essential element to this offense is the length of the weapon's barrel .... There was no evidence presented at trial regarding the length of the alleged firearm. Thus, since ~ Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S. §6105. 2 Defendant's post-sentence motion (filed August 31, 1995). An additional motion contained in the post-sentence motion was for "Transcription of Trial Notes of Testimony." This portion of the motion, which requested that the notes of testimony of trial be transcribed, was granted by prior order. Order of Court, September 1, 1995. NO. 95-0263 CRIMINAL TERM the length of the weapon is an indispensable element, and no proof of the barrel's length was presented, the conviction can not be sustained .... The Commonwealth's own expert testified that the results of the atomic absorption test indicated any one of the following: (1) that the Defendant fired a weapon; (2) that the Defendant was close to a firearm when it was discharged; (3) that the Defendant shook hands or otherwise came in contact with a person who had discharged a firearm; (4) that the Defendant handled a casing from a cartridge that had been discharged; or (5) that the Defendant came in contact with a person who had handled a casing from a cartridge that had been discharged. This evidence was not sufficient to sustain a verdict beyond a reasonable doubt. Motion for a New Trial The jury's verdict was against the weight of the evidence because the only evidence presented that Defendant was in possession of a firearm was the testimony of a lay witness who had previously testified under oath contrary to ... his testimony at trial. In addition, no evidence was presented as to the length of the firearm that Defendant allegedly possessed. The trial court erred in allowing the testimony of two (2) lay witnesses who had previously given written statements to the investigating officer, when the Commonwealth failed to provide such statements despite a timely written request for same, until during the trial. The trial court erred in allowing testimony of an incident that occurred at a different location approximately an hour earlier, with only inferences and speculation that Defendant was present at this earlier incident. There was no evidence presented that Defendant was involved in the earlier 2 NO. 95-0263 CRIMINAL TERM incident. The trial court erred in allowing the testimony and exhibits concerning the ownership and registration of two firearms by a Mr. Atkins. Again, despite a timely written request to produce same, the Commonwealth failed to disclose this information until 4:00 p.m., the day before trial. Motion Challenqinq the Jurisdiction of this Court No evidence was presented that the Defendant possessed a firearm in this Court's jurisdiction. The results of the atomic absorption test, while they do not prove that Defendant possessed a firearm, certainly do not prove beyond a reasonable doubt that Defendant possessed a firearm in Cumberland County. Thus, this Court is without jurisdiction. Motion To Modify Sentence In light of the lack of evidence that the Defendant committed the offense charged, and the existence of no aggravating circumstances, Defendant respectfully requests that this Honorable Court erred in not imposing a sentence under the mitigated range of the Sentencing Guidelines.3 The issues being pursued by Defendant at this point4 are specified in Defendant's brief on the post-sentence motion as follows: I. Whether the evidence submitted at trial was insufficient as a matter of law to sustain a conviction for Former Convict Not to Possess 3 Defendant's Post-sentence Motions, filed August 31, 1995. 4 See Cumberland County Rule of Procedure 210-7 (issues raised but not briefed deemed abandoned). 3 NO. 95-0263 CRIMINAL TERM a Firearm as the Commonwealth failed to present any physical evidence of a firearm, let alone any evidence as to the length of the barrel? II. Whether the Court erred in allowing testimony of an incident that had occurred at least one (1) hour prior to the search of Defendant's home, when the Commonwealth failed to present any evidence linking Defendant to said incident, thus providing no probative value to this case at all, and only resulting in highly prejudicial evidence against the Defendant?s In addition, the textual portion of Defendant's brief relating to sufficiency of the evidence also refers to weight of the evidence.~ And the final paragraph of the text of the brief appears to be intended to preserve and argue two further evidentiary issues: In addition, the trial court erred in allowing the testimony and exhibits concerning the ownership and registration of two firearms by a Mr. Atkins. Again, despite a timely written request to produce same, the Commonwealth failed to disclose this information until 4:00 p.m., the day before trial. Also, the trial court erred in allowing the testimony of two (2) lay witnesses who had previously given written statements to the investigating officer, when the Commonwealth failed to provide such statements despite a timely written request for same, until during the trial. See s Defendant's Brief in Support of His Post-Sentence Motions, at 1 (filed December 13, 1995). 6 Defendant's Brief in Support of His Post-Sentence Motions, at 2 (filed December 13, 1995). 4 NO. 95-0263 CRIMINAL TERM Commonwealth v. Grady, 373 U.S. 83 (1963).7 These five points will be discussed hereafter. STATEMENT OF FACTS The trial in this case was held on Tuesday, July 18, 1995. No testimony was presented on behalf of the Defendant. The evidence presented on behalf of the Commonwealth tended to show the following-. 8 On Saturday, February 5, 1995, at approximately 9:00 p.m., a 27-year-old woman named Jami Felton9 was at her residence at 213 North Pitt Street in Carlisle, Cumberland County, Pennsylvania,~° when she twice heard a noise that sounded like glass breaking.~ The noise came from the house of Ms. Felton's cousin (Joyce Felton) across the street.~2 Upon hearing the noise, Jami Felton looked outside and saw two people coming out of her cousin's residence at 230 North Pitt Street.~3 The visibility was such that Jami Felton 7 Defendant's Brief in Support of His Post-Sentence Motions, at 5 (filed December 13, 1995). N.T. 27. N.T. 25-26. N.T. 25-26. N.T. 28. N.T. 27-28. N.T. 28. 5 NO. 95-0263 CRIMINAL TERM could not make any identification.TM A sister of Jami Felton (Tammi Felton) called the police and, in an attempt to locate Joyce Felton, called Joyce Felton's mother (Charmaine Felton).~s Joyce Felton happened to be at her mother's house at the time.~6 She was told that Jami and Tammi Felton had heard shots at her house.~? Joyce Felton investigated, and reported to Jami and Tammi Felton that somebody had "shot up" her house.~8 Joyce Felton, Charmaine Felton and Jami Felton then drove to West North Street in Carlisle because Joyce Felton had said that she "seen somebody."~9 They came upon the Defendant, who was in an area behind Charmaine Felton's house,2° about two blocks from Joyce Felton's house.2~ Defendant approached Jami Felton and accused her of "pointing him out."2~ Tim Felton, a 26-year-old Carlisle resident and former N.T. 29. N.T. 29-30. N.T. 29-30. N.T. 29-30. N.T. 30. N.T. 30. N.T. 32. N.T. 33. N.T. 32. 6 NO. 95-0263 CRIMINAL TERM marine,23 received a call from his sister Tammi Felton at approximately 10:00 p.m.24 Tammi Felton asked Mr. Felton to come to the area of 230 North Pitt Street "in relation to some problems that were going on there.''2~ Upon his arrival, Tim Felton was told by his sister Jami that she had been threatened.26 Tim Felton entered the residence of Joyce Felton at 230 North Pitt Street and saw that the T.V. was shot through the middle and displayed what appeared to a bullet hole in the center.27 In addition, water was on the floor from a fish tank that had been sitting there.28 Tim Felton stayed on the scene for approximately ten minutes,29 and then went to the area of 215 West North Street, toward which the two individuals were reported to have gone, with a view toward locating the person who had caused the damage at 230 North Pitt Street.3° The addresses of 215 West North Street and 230 North Pitt Street were within two blocks of each other.3~ Tim Felton saw N.T. 35-36. N.T. 35. N.T. 36. N.T. 36, 43. N.T. 37. N.T. 37. N.T. 40. N.T. 41. N.T. 137. 7 NO. 95-0263 CRIMINAL TERM Defendant in the living room at 215 West North Street,TM which was the residence of Defendant's brother.33 At that time, Tim Felton observed that Defendant had what appeared to be a gun in his crotch area or "stuffed down the front of his pants," with the butt sticking out.34 The item resembled a handgun -- a revolver -- with the visible portion being black or brown in color and possibly plastic.~5 However, Mr. Felton could not tell the exact length of the barrel.~6 Michael T. Clepper, a police officer with the Borough of Carlisle,37 was dispatched to 230 NOrth Pitt Street in response to a report of shots fired at approximately 9:00 p.m. on February 5, 1995.38 Officer Clepper was the first officer to arrive.39 When he arrived, he saw Joyce Felton coming down the sidewalk.4° Ms. Felton told the officer that shots had been fired in her house, and that N.T. 41. N.T. 80. N.T. 42. N.T. 43-46. N.T. 50-51. N.T. 51. N.T. 52. 39 N.T. 52. Officer Dave McKinney, also with the Carlisle Police, arrived seconds after Officer Clepper. N.T. 53. 8 NO. 95-0263 CRIMINAL TERM the person who had fired them had left.4~ Officer Clepper entered the residence and noticed that the T.V. had a large hole in it; it appeared to him that the screen had been shot through.42 An aquarium also appeared to have been shot, as water, fish, and gravel were all over the floor.43 Officer Clepper made a brief scan of the area and saw bullet fragments hanging from the tablecloth.44 Two copper-top bullet fragments were later collected from the scene.4~ After examining the bullet holes in both the T.V. and the aquarium, Officer Clepper concluded that the bullet holes were not made with a shotgun or rifle, as there would have been a lot more damage and a lot more fragmentation.~6 After leaving 230 North Pitt Street, Officer Clepper went to 215 West North Street. Sergeant Michael James Guido,~7 and Officer Kenton McCoy,48 both of the Carlisle Police Department, arrived at N.T. 53. N.T. 53-54. N.T. 54. Because the T.V. and aquarium were in two different directions, Officer Clepper believed two shots must have been fired. Id. ~4 N.T. 56. 4~ N.T. 152. One fragment was found on the living room floor near the couch, and another fragment on the aquarium stand. Id. N.T. 68-69. N.T. 78. N.T. 130. 9 NO. 95-0263 CRIMINAL TERM 215 West North at the same time as Officer Clepper.49 Upon their arrival, the officers saw Tammi Felton standing outside; Joyce Felton was in her vehicle; and Tim Felton was coming from the porch.5° Either Tim Felton or Tammi Felton yelled that the Defendant was inside 215 West North and that he had a handgun.5~ The officers approached the residence and were told by Defendant's brother, George Brooks, that they could enter,s2 Mr. Brooks informed the officers that the Defendant was not there;53 however, Sergeant Guido heard what he believed to be footsteps moving back and forth upstairs,s4 Sergeant Guido then detected footsteps coming down the stairwell and yelled, "Sheldon, let me see your hands.''55 The Defendant did not comply with the order, kept his hands under his jacket, and continued down the stairs,s6 At this point, both Sergeant Guido and Officer Clepper had their service revolvers drawn, believing that the Defendant had a gun.~7 N.T. 59. N.T. 60. N.T. 60. N.T. 81. N.T. 81. N.T. 82. N.T. 83. N.T. 83-84. N.T. 84. 10 NO. 95-0263 CRIMINAL TERM Defendant eventually complied with Sergeant Guido's order and showed his hands.58 Defendant then, on Sergeant Guido's order, went face down on the carpet, and Sergeant Guido conducted a pat-down search of the Defendant.59 The officer recovered two .357 bullets from Defendant's right pocket.6° Officer McCoy then transported the Defendant to the Carlisle Police Department.6~ Once the Defendant was taken into custody, Officer Clepper and Sergeant Guido began to search the house.62 Although the search was eventually abandoned because of unsavory conditions of disarray and insect contamination at the residence,63 a .357 spent shell casing was found in the couch by Sergeant Guido.64 This casing matched the brand of bullets found in the Defendant's pocket.65 Defendant's state parole officer, Arthur Weitoish, also found a bag at this residence.66 Mr. Weitoish examined the contents and uncovered 58 N.T. 85. - s9 N.T. 85-86. 60 N.T. 88. 6~ N.T. 135. 62 N.T. 91. 63 N.T. 91-92. 64 N.T. 153. 6s N.T. 153. 66 N.T. 165-166. 11 NO. 95-0263 CRIMINAL TERM twelve unfired .38 bullets.~? This caliber of bullet can be used in a .357 magnum revolver.~8 Defendant conceded that some of the contents of the bag were his, but denied owning the bullets.~9 At the police station, Trooper David Guido (no relation to Sergeant Guido), an investigator in the criminal division of the Pennsylvania State Police, arrived to take samples for an atomic absorption test.TM An analysis of the samples indicated the presence of gunshot primer residue on the Defendant's right hand.7~ At the time of these events, Defendant's residence was with his stepfather, Theodore Atkins, at 46 Marilyn Drive in Carlisle.TM At the residence, Mr. Atkins kept two .357 magnum revolvers, one with a barrel length of three inches and the other with a barrel length of two-and-a-quarter inches.~3 The smaller gun had a brown N.T. 166. N.T. 89. N.T. 167. 70 N.T. 93. N.T. 115. This result could theoretically indicate any of the following: (1) Defendant had recently handled or discharged a firearm; (2) Defendant had handled a contaminated or spent casing that was severely contaminated; or (3) Defendant had engaged in a handshake with someone who just fired a weapon and who had a contaminated right palm. N.T. 115, 125. 72 N.T. 155. 73 N.T. 156-57. 12 NO. 95-0263 CRIMINAL TERM plastic handle.TM Although Mr. Atkins initially told an investigating officer that this gun was in a safe to which Defendant had no access,75 it developed that it was not in the safe with the other gun but was found in a drawer under some clothing.TM By stipulation of counsel, it was established that Defendant had previously been convicted of a crime of violence.77 The observations of Jami Felton and Tim Felton recited above were testified to by them at trial. Prior to their testimony, during jury selection, the Commonwealth disclosed to the defense, for the first time, a handwritten statement made by each of these individuals to the police.TM Defendant's counsel had made an informal discovery request for eyewitness statements about a month and a half prior to trial.TM Based upon the lateness of this disclosure, Defendant's counsel requested, before opening statements were made, that the Commonwealth be precluded from presenting any testimony by Tim Felton.8° Although he initially made the same request as to any N.T. 158. N.T. 157. N.T. 158. N.T. 144-45. N.T. 18. N.T. 72; Court's Exhibit 3. 80 N.T. 19. 13 NO. 95-0263 CRIMINAL TERM testimony of Jami Felton, Defendant's counsel did not appear to ultimately press the issue of her testimony.8~ The following facts transpired with respect to this discovery/evidentiary issue: First, the prosecuting attorney had not been provided with the written statements by police and had been unaware of their existence; upon his being advised of their existence, he promptly disclosed them to Defendant's counsel.82 Second, the basic accounts of both individuals were known to the defense, because they testified at the preliminary hearing in the case.83 Third, a comparison of Jami Felton's statement and her trial testimony fails to disclose substantial inconsistencies between them; nor is there any indication in the record that her preliminary hearing testimony differed from either her statement or her trial testimony. Similarly, a comparison of Tim Felton's statement, preliminary hearing testimony and trial testimony does not disclose significantly contradictory versions of the events.84 Fourth, the Commonwealth's attorney represented, without contradiction by Defendant's counsel, that the statement of Tim Compare N.T. 17 with N.T. 19. N.T. 18, 73. N.T. 18; Defendant's Exhibit 1. Court's Exhibit 1 (Jami Felton statement); Commonwealth's Exhibit 9 (Tim Felton statement); Defendant's Exhibit 1 (preliminary hearing transcript of Tim Felton's testimony); N.T. 25-34 (Jami Felton trial testimony); N.T. 35-51 (Tim Felton trial testimony). 14 NO. 95-0263 CRIMINAL TERM Felton was paraphrased in a police report provided in earlier discovery to the defense.8s Finally, Defendant's counsel declined to request a less drastic remedy (e.g., a continuance) than outright preclusion of testimony.86 After considering the matter, the court denied Defendant's request that the testimony of Tim Felton be precluded.87 At the conclusion of the evidentiary phase of the trial, closing arguments and the charge of the court, the case was submitted to the jury.88 Following deliberations, Defendant was found guilty of violating Section 6105 of the Crimes Code (former convict not to own firearm).89 On August 22, 1995, Defendant was sentenced to pay the costs of prosecution and to undergo imprisonment in a state correctional institution for a period of not less than fifteen months nor more than thirty months.9° The sentence was the minimum provided for within the standard range of Pennsylvania's sentencing guidelines.9~ N.T. 19. N.T. 21. N.T. 21. N.T. 187. N.T. 188. Order of Court, August 22, 1995. See Defendant's presentence investigation report. 15 NO. 95-0263 CRIMINAL TERM DISCUSSION Sufficiency of the evidence. With regard to Defendant's sufficiency-of-the-evidence claim, the rule is that in reviewing a challenge to the sufficiency of the evidence a court is to determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.92 Section 6105 of the Crimes Code (former convict not to own firearm) provides as follows: No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.93 For present purposes, the term"firearm" is defined in Section 6102 of the Crimes Code as 9~ Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2 (1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991). 93 Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S. §6105. 16 NO. 95-0263 CRIMINAL TERM [a]ny pistol or revolver with a barrel less than 15 inches, any shotgun with a barrel less than 18 inches or any rifle with a barrel less than 16 inches ....94 The length of the barrel must be considered an essential element of the crime. Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978). In the present case, Defendant maintains that the evidence was insufficient to show that a gun was involved in Defendant's activity or that, if it was, the weapon qualified as a firearm in terms of barrel length.95 With respect to the presence of a gun, however, the court is of the view that evidence as to the shooting in Joyce Felton's house, Defendant's discovery nearby shortly thereafter and his accusation that Jami Felton had "pointed him out," the observation of Tim Felton that Defendant had what appeared to be a handgun tucked in his waistband, the ammunition Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. §6102. By virtue of an amendment to the statute in 1988, a firearm also includes "any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches." Act of December 18, 1988, P.L. 1275, §1, amending Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. S6102 (1995 Supp.). However, the court's charge to the jury utilized the standard instruction at 15.6105 of the Pennsylvania Suggested Standard Jury Instructions (September 1976), which did not incorporate this amendment~ N.T. 181. As a result, Defendant received the benefit of a more limited definition of firearm than should have been given. 95 Defendant's Brief in Support of His Post-Sentence Motions, at 2-4 (filed December 13, 1995). 17 NO. 95-0263 CRIMINAL TERM found upon or otherwise associated with Defendant, Defendant's access to a handgun at his residence, and the presence of gunshot primer residue on his hand, inter alia, supported a reasonable finding that Defendant had a gun on the occasion in question. Similarly, with respect to the gun's barrel length, it is believed that evidence as to the unlikelihood that the weapon used in the shooting was a shotgun or rifle, the observation of Tim Felton as to the gun's location in Defendant's waistband and his impression that it was a handgun, the consistency of the gun observed with a .357 magnum which was available to Defendant at his residence and which had a barrel length of two-and-a-quarter inches, and the presence on his person of bullets fitting this particular weapon, inter alia, permitted a reasonable finding that the length of the barrel of the gun stuck in Defendant's waistband was less than fifteen inches. The length of a barrel may be the subject of inference based upon circumstances, such as the nature of its container. Commonwealth v. Rozplochi, 385 Pa. Super. 357, 369-370, 561 A.2d 25, 31-32, appeal denied, 524 Pa. 619, 571 A.2d 381 (1989). Relevancy of Shootinq Incident. With regard to Defendant's claim of error, on relevancy grounds, in the court's admission of testimony as to the shooting incident at Joyce Felton's house, it does not appear that the admission warrants a new trial. An examination of the record fails to reveal that an objection was 18 NO. 95-0263 CRIMINAL TERM made to this testimony when it was received, nor was a motion made that it be stricken.96 An objection to the admissibility of evidence ... must be timely and specific or else the objection will be waived. The primary reason for this requirement is to give the court an opportunity to prevent harm by sustaining an objection to the offer of evidence 97 On the merits, testimony as to the shooting appears to meet the test of relevancy in this case. Relevant evidence has been defined in the following terms: Evidence which tends to establish some fact material to the case, or which tends to make a fact of issue more or less probable, is relevant.98 The occurrence of the shooting at Joyce Felton's residence, when considered in conjunction with Defendant's proximity to the scene, his complaint that he had been "pointed out" by a witness, his display of what appeared to be a gun handle at his waistband, his possession on his person of bullets for a .357 magnum, his ready access to a .357 magnum, and the contamination of his hand with gunshot primer residue, tended to enhance the probability that ~6 Defendant, at the conclusion of the Commonwealth's case, did object to the admission of certain Commonwealth exhibits relating to the shooting, on relevancy grounds. N.T. 169-70; see also N.T. 58. 97 Packel & Poulin, Pennsylvania Evidence S103.1, at 9 (1987). ~ Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978), appeal after remand, 496 Pa. 188, 436 A.2d 607 (1981); see Packel & Poulin, Pennsylvania Evidence §401 (1987). 19 NO. 95-0263 CRIMINAL TERM the item seen in his possession was a firearm - as opposed, for instance, to a water pistol. Weiqht of the evidence. "A motion for a new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence." Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1230 (1984). "Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge .... " Id. A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the ... verdict is so contrary to the evidence as to shock one's sense of justice and make the award of a new trial imperative so that right may be given another opportunity to prevail.99 In this case, the only testimony presented was by Commonwealth witnesses in support of the prosecution. The jury's acceptance.of that testimony and conclusion that Defendant had' possessed a firearm on the occasion in question was not shocking to the court's sense of justice. Admission of evidence of handquns at De~endant's residenc~. With respect to Defendant's claim that the court erred in the ~ Commonwealth v. Manchas, 430 Pa. Super. 63, 71, 633 A.2d 618, 622 (1993), appeal denied, 539 Pa. 647, 651 A.2d 535 (1994), citing Commonwealth v. Whitney, 511 Pa. 232, 239, 512'A.2d 1152, 1155-56 (1986). 20 NO. 95-0263 CRIMINAL TERM admission of evidence as to certain handguns at Defendant's residence, due to late disclosure of such evidence by the Commonwealth, an examination of the record fails to disclose any objection to the evidence. As noted above, the absence of objection constitutes a waiver. Admission of testimony of Jami Felton and T~m Felton. With respect to Defendant's claim that the court erred in the admission of testimony of Jami Felton~°° and Tim Felton, due to late disclosure of their handwritten statements by the Commonwealth, several factors suggest that a new trial is not required. First, the prosecutor's prior lack of possession and awareness of these statements would seem to be dispositive of the issue: [T]he prevailing view in this Commonwealth is that the prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pretrial discovery, even if the evidence is in police custody. Commonwealth v. Bonacurso, 500 Pa. 247, 251 n.3, 455 A.2d 1175, 1177 n.3 (emphasis omitted), cert. denied, 462 U.S. 1120, 103 S. Ct. 3090, 77 L. Ed. 2d 1350 (1983); see Commonwealth v. Piole, 431 Pa. Super. 391, 396, 636 A.2d 1143, 1145 (1994) (eyewitness statement). ~00 As noted above in the statement of facts, the court was not under the impression that Defendant's counsel intended to maintain his objection to Jami Felton's testimony,. See note 81 and accompanying test. However, this matter will be addressed on the merits. 21 NO. 95-0263 CRIMINAL TERM Second, it is difficult to discern any significant prejudice resulting to Defendant from the timing of the disclosure. Both witnesses testified at a preliminary hearing, and the statement of Tim Felton, at least, was paraphrased in a police report disclosed to Defendant. The existence of these witnesses and the general tenor of their trial testimony was known to Defendant without benefit of the written statements. In addition, Defendant received the statements in time to use them in examining the witnesses, if he cared to. A new trial will be warranted by reason of a discovery violation only if there is prejudice and "'only if the prejudice is so great that the fairness of the trial has been affected.'" Commonwealth v. Manchas, 430 Pa. Super. 63, 78, 633 A.2d 618, 626 (1993), quoting Commonwealth v. Johnson, 310 Pa. Super. 385, 395, 456 A.2d 988, 993 (1983). Third, the remedy acceptable to Defendant for the alleged discovery violations -- exclusion of all testimony of the witnesses - was too drastic in the court's view for the situation. When the effect of a discovery violation is simply to surprise a defendant, and the evidence in question is otherwise admissible, an order which could effectively terminate the prosecution is generally not appropriate. Commonwealth v. Crossley, 439 Pa. Super. 342, 653 A.2d 1288 (1995). The selection of a remedy is discretionary with the trial court under Pennsylvania Rule of Criminal Procedure 22 NO. 95-0263 CRIMINAL TERM 305E,TM and normally in such circumstances a continuance will adequately protect a Defendant. Id. In the present case, the court in the exercise of its discretion did not find the remedy which Defendant was amenable to appropriate. For the foregoing reasons, the following order will be entered. ORDER OF COURT AND NOW, this /g~ day of December, 1995, after careful consideration of Defendant's post-sentence motion in the form of a motion for judgment of acquittal, a motion for a new trial, a "[m]otion challenging the Jurisdiction of this Court," and a motion to modify sentence, and of the briefs submitted on the matter, for the reasons stated in the accompany Opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jonathan R. Birbeck, Esq. Sr. Assistant District Attorney William C. Vohs, Esq. Court-appointed attorney for Defendant :re ~o~ Commonwealth v. Crossley, 439 Pa. Super. 342, 348, 653 A.2d 1288, 1291 (1995). 23