IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

:

John M. DeMaske, : No. 770 C.D. 2019

Appellant : Submitted: August 19, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: November 16, 2022

John M. DeMaske (Appellant) appeals from the judgment of sentence 

entered in the Court of Common Pleas of Greene County (trial court) following his 

jury trial convictions for six (6) counts of unlawful killing or taking of big game, in 

violation of the Game and Wildlife Code,1 34 Pa.C.S. § 2321(a)(2). This Court 

previously remanded the matter to the trial court to allow Appellant to file, nunc pro 

tunc, a concise statement of errors complained of on appeal pursuant to Pennsylvania 

Rule of Appellate Procedure 1925(b) and for the trial court to thereafter issue an 

opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). See Com. 

v. DeMaske (Pa. Cmwlth., No. 770 C.D. 2019, filed Jan. 4, 2022) (DeMaske I). Both 

Appellant and the trial court complied with these directives on remand, and the 

1

34 Pa.C.S. §§ 101-2965.
2

matter now returns to this Court for determination. After careful review, we affirm 

the judgment of sentence. 

I. Background and Procedural Posture

In our previous decision, this Court outlined the salient facts and 

relevant procedural posture underlying this appeal as follows. See DeMaske I, slip 

op. at 2-5.

On November 15, 2015, Appellant presented at the home 

of Lonnie Starcher.2 See Notes of Testimony, May 31, 

2018 (N.T. 5/31/2018) at 51, 75-76, 186. Appellant had 

eight deer antler racks in his truck, which he removed and 

placed in a storage shed on the property owned and used 

by the DeMaske family.3 See id. at 76. 

2 Starcher rents a house on property owned by 

Appellant’s father, Marko DeMaske, with whom 

Starcher has a good relationship. See Notes of 

Testimony, May 31, 2018 (N.T. 5/31/2018), at 65, 

75, 77 & 80. 

3 Starcher explained that he stores some 

Christmas things and a lawn mower in the shed, 

but that otherwise the DeMaske family owns the 

storage shed and accesses it to store things therein 

at their convenience. See N.T. 5/31/2018 at 80.

On November 20, 2015, the Pennsylvania Game 

Commission received an anonymous report regarding deer 

antlers being stored at Starcher’s residence. See N.T. 

5/31/2018 at 50-51. As a result, multiple game wardens 

arrived at the residence on the evening of November 20, 

2015, and discovered eight racks of antlers in the storage 

shed, seven of which appeared fairly fresh with blood and 

brain matter still attached.4 See id. at 51-52, 65, 72-73. 

The game wardens photographed and seized the antlers. 

See id. at 52.
3

4 The eighth antler rack appeared to the game 

wardens to be an old rack. See N.T. 5/31/2018 at 

52, 69.

On November 21, 2015, multiple game wardens 

visited Appellant’s home, where they encountered 

Appellant. See N.T. 5/31/2018 at 68, 89, 94-95, 99. 

Appellant gave a statement to the wardens regarding the 

deer antlers while seated in the passenger’s seat of the 

wardens’ vehicle. See id. During the interview, Appellant 

admitted to the game wardens that he had delivered the 

antlers to the shed at Starcher’s. See N.T. 5/31/2018 at 89-

90. He further admitted that he killed three deer with a 

crossbow during the hunting season, although he was only 

supposed to kill one. See N.T. 5/31/2018 at 90, 98-99, 

178. At trial, Appellant testified that he did not 

intentionally kill three deer in violation of the rules. See

N.T. 5/31/2018 at 178. Instead, Appellant explained that 

he had shot the first deer and tried to track it, without 

success. See N.T. 5/31/2018 at 90-91, 99, 178. Appellant 

explained that he thereafter shot and killed a second deer, 

then found the carcass of the first deer before shooting and 

killing a third deer with the aid of his father, Marko 

DeMaske.5 See N.T. 5/31/2018 at 90-91, 99-100, 179. 

Appellant also explained that three of the deer antlers in 

the shed came from roadkill and another was killed by 

Kevin Jenkins, another renter.6 See N.T. 5/31/2018 at 90. 

Appellant also voluntarily showed the game wardens 

pictures of the deer that were on his phone, which the 

wardens confiscated. See N.T. 5/31/2018 at 93, 103. The 

game wardens also confiscated Appellant’s two crossbows 

during the interview. See N.T. 5/31/2018 at 93-94, 98-99, 

110, 177.

5 Game wardens also charged Marko DeMaske 

with multiple counts of unlawful killing or taking 

of big game, but later dropped those charges. See

N.T. 5/31/2018 at 71, 101.
4

6 This version comes from the game wardens’ –

Officers Steve King, Michael Lubic, and Brandon 

Bo[n]in – testimony as to what Appellant told the 

authorities. See N.T. 5/31/2018 at 49-73, 88-111 

& 138-172. On direct examination, Appellant 

provided a slightly different version of how the 

seven fresh sets of antlers came to be in the shed: 

one was his, one was his father’s, two were the 

ones he had injured and that Starcher had 

retrieved, two were roadkill, and the final one was 

that of the second renter, Kevin Jenkins. See N.T. 

5/31/2018 at 183-84.

Regarding licensing, Appellant possessed only one 

tag to harvest an antlered deer in Pennsylvania during the 

2015 hunting season. See 5/31/2018 at 141, 148. 

Appellant did not have a hunting license from West 

Virginia or Ohio for 2015, and he did not report any 

harvest in 2015 to the Pennsylvania Game Commission. 

See 5/31/2018 at 141, 153-55. 

Following a two-day trial, a jury convicted 

Appellant of seven counts of unlawful killing or taking of 

big game.7 On August 1, 2018, the trial court sentenced 

Appellant to an aggregate sentence of 5 days to 8 months 

of incarceration followed by 60 days of probation, together 

with fines and restitution totaling $3,000 and $4,000, 

respectively. See Trial Court Sentencing Order dated 

August 1, 2018 at 2-5 (pagination supplied). 

7 Despite the jury’s conviction on seven counts 

of unlawful killing or taking of big game, the 

verdict was recorded as six counts because 

Appellant had one antlered deer tag for 2015, 

although Appellant failed to report any deer 

harvest to the Pennsylvania Game Commission in 

2015.

Appellant filed a timely Notice of Appeal on August 

24, 2018.8 See Notice of Appeal filed Aug. 24, 2018. On 
5

August 30, 2018, the trial court directed Appellant to file 

a Pennsylvania Rule of Appellate Procedure 1925(b) 

concise statement of errors complained of on appeal 

within 21 days. See Trial Court Order dated Aug. 30, 2018 

(Rule 1925(b) Order). On September 10, 2018, in 

response to Appellant’s Motion for Extension to File a 

Concise Statement filed the same day, the trial court 

extended Appellant’s deadline to file his Rule 1925(b) 

statement to October 10, 2018.9 See Trial Court Order 

dated Sept. 10, 2018 (Rule 1925(b) Extension Order); see 

also Motion for Extension to File a Concise Statement 

filed Sept. 10, 2018 (First Extension Request).

8 Appellant originally filed this appeal in the 

Superior Court of Pennsylvania. See Notice of 

Appeal; Superior Court Docket No. 1221 WDA 

2018 at 4. The Superior Court transferred the 

matter to this Court on April 29, 2019, pursuant to 

Section 762(a)(2)(ii) of the Judicial Code, 42 

Pa.C.S. § 762(a)(2)(ii), which confers upon this 

Court appellate jurisdiction over criminal 

proceedings for violations of regulatory statutes 

administered by Commonwealth agencies. See 

Dickerson v. Commonwealth, 87 A.2d 379, 381 

(Pa. Cmwlth. 1991).

9

In his proposed order for the trial court’s 

signature, Appellant requested that the trial court 

extend the Rule 1925(b) statement filing deadline 

to “within twenty-one (21) days after the transcript 

is filed[.]” See Rule 1925(b) Extension Order. 

The trial court, however, struck this suggested 

temporal language from the order and replaced it 

with a handwritten notation indicating the Rule 

1925(b) statement was due “30 days from this 

date[,]” which made the deadline for filing a Rule 

1925(b) Statement October 10, 2018. Id.

On November 1, 2018, after Appellant failed to file 

a Rule 1925(b) statement by the October 10, 2018 

deadline, the trial court issued an order directing that the 
6

record of the matter be transferred to the appellate court 

for review without a Rule 1925(b) statement. See Trial 

Court Order dated Nov. 1, 2018 (Transmittal Order). 

Thereafter, on November 13, 2018, Appellant filed a Rule 

1925(b) statement and his “Motion to Permit Late Filing 

of Defendant’s Concise Statement of Errors Complained 

of On Appeal” with the trial court. See Motion to Permit 

Late Filing of Defendant’s Concise Statement of Errors 

Complained of On Appeal filed Nov. 13, 2018 (Second 

Extension Request); see also Concise Statement of Errors 

Complained of On Appeal filed Nov. 13, 2018. In an order 

dated November 16, 2018, the trial court acknowledged 

these filings only to the extent that it directed the Greene 

County Clerk of Courts to forward copies of the filed Rule 

1925(b) statement and the November 16, 2018 order to the 

appellate court for its consideration. See Trial Court Order 

filed Nov. 16, 2018 (Second Transmittal Order).

DeMaske I, slip op. at 2-5. 

On appeal, this Court determined that Appellant waived all his issues 

on appeal by failing to timely file an ordered Rule 1925(b) statement. See DeMaske 

I, slip op. at 9-10. Because this failure represented per se ineffectiveness of counsel, 

however, on January 4, 2022, we remanded the matter to the trial court to allow the 

nunc pro tunc filing of a Rule 1925(b) statement by Appellant and the preparation 

of a Rule 1925(a) opinion by the trial court. See id. Appellant filed his Rule 1925(b) 

statement on January 18, 2022, and the trial court accepted the filing and issued a 

“Statement Pursuant to Pa. R.A.P. 1925” (Trial Court Opinion) thereafter. The 

matter is now ripe for determination on the merits.

II. Issues

Appellant raises the following issues for our review:

1. Did the [trial c]ourt permit Deputy Game Warden Bonin 

and Deputy Game Warden King to give expert testimony 
7

without these witnesses being qualified as an expert [sic]

or being required to provide expert reports to the defense?

2. Did the [trial c]ourt err in treating each set of deer 

antlers which [Appellant] transported to [] Starcher’s 

residence as a separate criminal offense?

3. Was [Appellant] unduly prejudiced by the prosecution 

e-mailing discovery to defense counsel months after it was 

due and days before the trial?

4. Did the [trial c]ourt err in failing to [grant] a Motion to 

Dismiss all but three [c]ounts of unlawfully possessing or 

killing deer at the conclusion of the Commonwealth’s case 

in chief? Did the Commonwealth fail to establish a prima 

facie case?

5. Did the [trial c]ourt err in not entering a directed verdict 

for [Appellant] at the conclusion of all the evidence as the 

Commonwealth proved only that [Appellant] killed three 

deer and he had a lawful tag for one deer?

6. Did the Commonwealth’s evidence fail to prove that 

[Appellant] knew that all seven sets of deer antlers in his 

possession were illegally obtained or killed by other 

people?

7. Did the Commonwealth fail to provide notes taken by 

Deputy Game Warden Lubic which were transcribed at the 

time [Appellant] was being questioned by police?

Appellant’s Br. at 3-4.2

2 We note that, in response to this Court’s August 4, 2022 order regarding supplemental 

briefing following remand, Appellant’s counsel informed the Court that Appellant intended to rely 

on his previously filed brief and thus would submit no further briefing in this matter. See

Commonwealth Court Order dated Aug. 4, 2022; see also Letter of Neil J. Marcus dated Aug. 9, 

2022.
8

III. Discussion

A. The testimony of the Deputy Game Wardens

First, Appellant claims that the trial court erred by letting the game 

wardens testify as to their observations about the deer antlers confiscated. See

Appellant’s Br. at 10-11. Appellant alleges that this testimony amounted to 

improper expert testimony. See id. He is incorrect.

Initially, we observe that “[t]he admission of evidence is solely within 

the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion.” Com. v. Woodard, 129 A.3d 480, 

494 (Pa. 2015) (quoting Com. v. Reid, 99 A.3d 470, 493 (Pa. 2014)). Further, a trial 

court may accept the opinion of an expert where “the expert’s scientific, technical, 

or other specialized knowledge is beyond that possessed by the average layperson;” 

or where “the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue.” Pa.R.E. 

702. “[E]xpert testimony must be based on more than mere personal belief, and 

must be supported by reference to facts, testimony or empirical data.” Nobles v. 

Staples, Inc., 150 A.3d 110, 114 (Pa. Super. 2016) (quoting Snizavich v. Rohm & 

Haas Co., 83 A.3d 191, 195 (Pa. Super. 2013)) (internal quotation marks omitted). 

Otherwise stated, “expert testimony reflects the application of expertise and does not 

stray into matters of common knowledge.” Com. v. Manivannan, 186 A.3d 472, 485 

(Pa. Super. 2018) (internal quotation marks and brackets omitted).

In the instant matter, Deputy Game Warden King and Deputy Game 

Warden Bonin testified simply to their own personal observations regarding the 

antler racks seized from the storage shed. See N.T. 5/31/2018 at 52, 69, 72-73. 
9

Deputy Game Warden King testified that seven of the antler racks “seemed to be 

really fresh, they still had brain matter in them and blood on them.” N.T. 5/31/2018 

at 52. He further observed that “[o]ne of them was an old one.” Id. These are not 

specialized observations beyond the ken of the average layperson, but instead are 

simple personal observations and descriptions of things within the witnesses’ sight. 

As such, this is not testimony that requires qualification as an expert. See Nobles. 

Further, the same is true of the Deputy Game Wardens’ testimony regarding the 

photographs of the deer antlers. See N.T. 5/31/2018 at 53, 58-59, 120, 141-44. We 

find no error or abuse of discretion in the trial court allowing this testimony into 

evidence.

B. Individual antler racks as separate criminal counts

Second, Appellant argues that the trial court erred by treating each set 

of deer antlers transported to and confiscated from Starcher’s residence as a separate 

criminal offense. See Appellant’s Br. at 11-12. Appellant is not entitled to relief on 

this claim.

The Game and Wildlife Code grades counts of unlawful killing or 

taking of big game as follows: 

(2)(i) A violation of subsection (a)(1) or (2) where the 

species is a single white-tailed deer or a single wild turkey 

is a summary offense of the first degree and may result in 

forfeiture of the privilege to hunt or take wildlife anywhere 

within this Commonwealth for a period of three years. A 

second violation of subsection (a)(1) or (2) where the 

species is a single white-tailed deer or a single wild turkey 

within a seven-year period is a misdemeanor and may 

result in forfeiture of the privilege to hunt or take wildlife 

anywhere within this Commonwealth for a period of five 

years. A third offense within a seven-year period where 

the species is a single white-tailed deer or a single wild 
10

turkey is a misdemeanor of the first degree and may result 

in the forfeiture of the privilege to hunt or take wildlife 

anywhere within this Commonwealth for a period of ten 

years.

(ii)(A) A second violation of subsection (a)(1) or (2) 

during the same criminal episode where the species taken, 

injured, killed, possessed or transported is white-tailed 

deer or wild turkey is a misdemeanor and may result in 

forfeiture of the privilege to hunt or take wildlife anywhere 

within this Commonwealth for a period of five years.

(B) A third or fourth violation of subsection (a)(1) or (2) 

during the same criminal episode where the species is 

white-tailed deer or wild turkey is a misdemeanor of the 

first degree and may result in forfeiture of the privilege to 

hunt or take wildlife anywhere within this Commonwealth 

for a period of ten years.

(C) A fifth or subsequent violation of subsection (a)(1) or 

(2) during the same criminal episode where the species is 

white-tailed deer or wild turkey is a felony of the third 

degree and may result in forfeiture of the privilege to hunt 

or take wildlife anywhere within this Commonwealth for 

a period of 15 years.

34 Pa.C.S. § 2321(d)(2). Pursuant to this offense grading scheme, the six (6) counts 

for which Appellant was found guilty included one summary offense, one ungraded 

misdemeanor, two misdemeanors of the first degree, and two felonies of the third 

degree. See Trial Court Docket CP-30-CR-0000274-2017 at 4.

The testimony of multiple witnesses in this matter, Appellant included, 

revealed that Appellant stored eight sets of antlers – seven fairly fresh sets and one 

old set – in the storage shed. Each antler rack – the fresh ones with the brain matter 

and blood still on them, at least – represented the killing and/or taking of a separate 

deer. It was within the Commonwealth’s purview to treat each as a separate offense 
11

under the Game and Wildlife Code and prosecute Appellant for each as an individual 

charge, which the Commonwealth accordingly did. See 34 Pa.C.S. § 2321(d)(2); see 

also Com. v. Brown, 708 A.2d 81, 84 (Pa. 1998) (noting that the Commonwealth 

retains general and widely recognized discretion regarding the prosecution of 

criminal matters).

To the extent Appellant criticizes the Commonwealth’s decision to 

prosecute him “for seven counts of violating the Big Game law for the short time 

deer antlers were in his possession” as “draconian,” this argument affords him no 

relief. Appellant’s Br. at 11. The fact that Appellant possessed the antlers only 

during the time it took to transport and store them at the storage shed in no way 

lessens his possession thereof – the Game and Wildlife Code contains no minimum 

temporal requirement for unlawful possession of big game remains before an 

individual may be guilty of unlawful killing or taking of such game. See 34 Pa.C.S. 

§ 2321(a)(2). Further, Appellant’s rhetorical observation that the authorities did not 

charge Starcher with unlawful killing or taking of big game despite the deer antlers 

being recovered in Starcher’s possession is likewise immaterial to whether Appellant 

himself was properly charged with seven counts of unlawful killing or taking of big 

game. See Appellant’s Br. at 11-12; see also Brown. Appellant is not entitled to 

relief on his second claim.

C. Pre-trial discovery production

Next, Appellant asserts that the trial court erred in admitting evidence 

where the Commonwealth did not respond to Appellant’s discovery requests within 

30 days of the service of the motion for discovery. See Appellant’s Br. at 12. In this 

cursory argument, Appellant fails to identify with any specificity the discovery at 

issue and/or the pertinent evidence admitted at trial. See id. Instead, he merely states 
12

that “[t]he prosecution dumped numerous emails and information upon [Appellant] 

in the two (2) weeks before the case was called for trial.” Id. Without further 

specificity or development of any kind, Appellant concludes “[t]his was unduly 

prejudicial to [him],” and therefore “[e]vidence which the prosecution wished to 

present should have been barred by the [trial c]ourt.” Id. Because he failed to 

meaningfully develop this issue in his brief, Appellant has waived this argument.

3

 

Com. v. Spotz, 18 A.3d 244 (Pa. 2011) (claim unreviewable and waived for lack of 

development where appellant did not develop the claim factually or legally and did 

not support it with citations, and the court could not discern what error allegedly 

occurred).

D. Motion to dismiss

Appellant next claims that the trial court erred by failing to grant a 

motion to dismiss on all but three counts of unlawful killing or taking of big game 

because the evidence established only that Appellant had killed three deer. See

Appellant’s Br. at 12-13. This claim is effectively a sufficiency of the evidence 

claim that entitles Appellant to no relief.

When examining a challenge to the sufficiency of evidence of a 

criminal conviction, an appellate Court’s standard of review is as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

3 Even in the absence of a response within 30 days to a discovery request, we do not agree 

with Appellant’s conclusory statement that “[t]he defense had the right to assume the 

Commonwealth could not or would not seek to prove that the deer antlers came from deer 

harvested in Pennsylvania.” Appellant’s Br. at 12.
13

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude 

every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may 

sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above 

test, the entire record must be evaluated and all evidence 

actually received must be considered. Finally, the [trier] 

of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, 

part or none of the evidence.

Com. v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014).

Here, the Commonwealth’s evidence that Appellant possessed seven 

deer included photographs and testimony regarding seven “fairly fresh” deer racks 

still with blood and brain matter on them that Appellant transported to and placed 

inside the storage shed at Starcher’s property. The evidence further illustrated that 

Appellant had but one antlered deer tag for the 2015 season and that none of the 

other individuals to whom Appellant attributed the deer racks had reported an 

antlered deer harvest in 2015. Finally, Appellant admitted taking a photograph 

recovered on his phone that depicted seven deer heads in a field. See N.T. 5/31/2018 

at 183. This evidence constituted prima facie proof of seven counts of unlawful 

killing or taking of big game sufficient to send the charges to the jury and deny any 

motion to dismiss or for directed verdict at the conclusion of the Commonwealth’s 

case in chief. Accordingly, Appellant is not entitled to relief on his fourth claim.
14

E. Motion for a directed verdict

In his fifth claim, Appellant alleges the trial court erred by failing to 

enter a directed verdict in his favor. See Appellant’s Br. at 13-14. A directed verdict 

should be granted if “the prosecution’s evidence, and all inferences arising 

therefrom, considered in the light most favorable to the prosecution, are insufficient 

to prove beyond a reasonable doubt that the accused is guilty of the crimes charged.” 

Com. v. Potts, 460 A.2d 1127, 1138 (Pa. Super. 1983). This claim fails for the 

reasons articulated above in reference to the motion to dismiss.

F. Sufficiency of the evidence regarding Appellant’s knowledge 

that the deer racks were illegally harvested

In his sixth claim, Appellant claims the Commonwealth failed to 

adduce evidence sufficient to prove that Appellant knew that the seven racks of deer 

antlers were illegally harvested. See Appellant’s Br. at 14-15. As with the previous 

two claims, this is a sufficiency of the evidence claim. It likewise fails.

Like all elements of crimes, “intent can be proven by direct or 

circumstantial evidence; it may be inferred from acts or conduct or from the 

attendant circumstances.” Com. v. Franklin, 69 A.3d 719, 723 (Pa. Super. 2013). 

Further, 

[w]e note that credibility determinations are within the 

sole province of the jury. A jury is entitled to believe all, 

part, or none of the evidence presented [and] can believe 

any part of a witness’ testimony that they choose, and may 

disregard any portion of the testimony that they 

disbelieve. Our court will not award a new trial if there is 

evidence supporting the jury’s finding.

Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198, 205 (Pa. Cmwlth. 2009) (internal 

citations, quotation marks, and brackets omitted).
15

In this matter, the evidence clearly showed that Appellant had seven 

sets of antlers in his possession. As the trial court noted, “[w]hether [Appellant] had 

actual knowledge that all seven deer antlers in his possession were illegally obtained 

or killed by other people was a question for the jury[.]” Trial Court Opinion at 6-7. 

The jury heard Appellant’s testimony that he did not intentionally kill deer in 

violation of the rules; that he had been unable to track certain deer he shot that were 

later located and that the remaining deer were either killed by another individual or 

were roadkill. The jury in its capacity as finder of fact disregarded this testimony 

and convicted Appellant as discussed above. As discussed, supra, our review of the 

record confirms that the Commonwealth put forth evidence from which a jury could, 

and did, attribute to Appellant knowledge of the illegal harvesting of the deer antlers 

he possessed. Appellant is accordingly not entitled to relief on this claim. See 

Tucker.

G. Deputy Game Warden Lubic’s notes

In his final issue, Appellant alleges he was prejudiced by a discovery 

violation because Deputy Game Warden Lubic made reference on direct 

examination to notes made during his November 21, 2015 interview with Appellant 

that had not been produced in discovery. See Appellant’s Br. at 15-16. Appellant 

alleges that had such notes been turned over, his counsel could have more effectively 

cross-examined the witness and prepared Appellant for his own direct testimony. 

See id. at 17. While not previously produced, the notebook in question was produced

during Deputy Game Warden Lubic’s cross-examination and Lubic explained that it 

contained a summary of the events of November 20-21, 2015. See N.T. 5/31/2015 

at 96-97. The notebook did not contain notes on Appellant’s statement regarding 

where he shot the deer; in fact, the only information regarding the notebook revealed 
16

at trial was (a) the notebook’s existence, and (b) the fact that the notebook did not

contain information or notes about what Appellant said during the interview on 

November 21, 2015. As such, Appellant cannot prove prejudice from the failure of 

the Commonwealth to have previously produced this notebook, and Appellant is not 

entitled to relief on his final claim. Com. v. Johnson, 727 A.2d 1089, 1097 (Pa. 

1999) (“a defendant seeking relief from a discovery violation must demonstrate 

prejudice”).

IV. Conclusion

For the reasons stated herein, we affirm the judgment of sentence.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

:

John M. DeMaske, : No. 770 C.D. 2019

Appellant :

O R D E R

AND NOW, this 16th day of November, 2022, the judgment of 

sentence entered by the Court of Common Pleas of Greene County is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge