J-S21040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

MARK THOMAS WARD BOISEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 905 MDA 2021

Appeal from the Order Entered July 9, 2021

In the Court of Common Pleas of Cumberland County Criminal Division at 

No(s): CP-21-CR-0003408-2019

BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JULY 28, 2022

The Commonwealth of Pennsylvania appeals1from the July 9, 2021 

order of the Court of Common Pleas of Cumberland County (trial court) 

excluding testimony of four police officers from the trial of Mark Thomas Ward 

Boisey (Boisey) as a sanction for a discovery violation. We reverse the order 

and remand for further proceedings.

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* Retired Senior Judge assigned to the Superior Court.

1 See Pa.R.A.P. 311(d) (“[I]n a criminal case, under the circumstances

provided by law, the Commonwealth may take an appeal as of right from an

order that does not end the entire case where the Commonwealth certifies in

the notice of appeal that the order will terminate or substantially handicap the

prosecution.”).
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I.

The trial court summarized the facts and procedural history of this case 

as follows:

[Boisey] was arrested on November 13, 2019. According to the 

allegations, [he] was involved in a violent domestic dispute which 

ended in a standoff with the police. Multiple shots were fired at 

the responding officers during the standoff. The defendant was 

charged with numerous offenses including criminal attempt to 

[commit] homicide. He has remained incarcerated since his 

arrest.

There were 3 continuances granted at the request of the Public 

Defender. [Boisey] obtained private counsel in November of 

2020. Private [c]ounsel received discovery from the Public 

Defender which consisted of “numerous DVDs filled with 

thousands of images, videos, and reports.” At the request of the 

defendant, the matter was continued to January 2021. It was 

continued yet again to the March term, and then to the May term.

On April 8, 2021, [Boisey] filed yet another request for a 

continuance on the basis that he just received the results of a 

gunshot residue test. While [his] hands were swabbed on the 

night of his arrest, the Commonwealth had not even submitted 

the sample for testing until March 22, 2021. We denied the 

request for a continuance but precluded the Commonwealth from 

presenting any evidence regarding the gunshot residue test. The 

Commonwealth did not object.

The case was called for trial as scheduled on May 17, 2021. Before 

jury selection began, defense counsel brought to our attention 

that it had just received reports from the Cumberland County 

Strategic Emergency Response Team (SERT). There had been 

multiple requests for all police reports from both the [p]ublic 

[d]efender and [p]rivate [c]ounsel during the many months this 

case had been pending. The Commonwealth had led the defense 

to believe that all police reports had been provided. We indicated 

that we would preclude the SERT team members from testifying 

to anything in their report. However, [d]efense [c]ounsel was 

adamant that he wanted a continuance to reconsider the defense 

strategy and to discuss the reports with the defendant. We 

granted the continuance to the July term of court.
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In light of the continuance, the Commonwealth asked us to 

reconsider our rulings excluding testimony regarding matters 

contained in the SERT reports as well as the gunshot residue test. 

Since the defense now had more than two months before the trial 

was scheduled, we reversed both rulings, indicating that all such 

evidence could be presented.

The trial was scheduled to begin on July 12, 2021. In June, 

[Boisey’s] counsel requested to withdraw his appearance so that 

new defense counsel could take over. We indicated that we would 

not allow the substitution if it would result in another delay. New 

defense counsel agreed that he would commit the time and 

resources necessary to try the case on time, which he did.

Yet again, on the eve of trial, the Commonwealth provided 

additional police reports. They consisted of reports which had 

been prepared shortly after the incident by the Lower Allen 

Township Police officers referred to above. The Commonwealth 

agreed that there was no excuse for the late discovery. [Boisey]

moved to exclude the testimony of those officers. The 

Commonwealth indicated that it had no objection except as to 

[O]fficer Rennie. It argued that since he had testified at the 

preliminary hearing, he should be allowed to testify at trial.

Defense [c]ounsel placed on the record, in [c]hambers and under 

seal, the ways in which the information contained in those reports 

would prejudice his client. After hearing the reasons, we were 

satisfied that it would require the defense to completely revise its 

strategy just days before trial. Since there was no excuse for the 

Commonwealth’s failure to have provided those reports, we 

excluded the testimony.

Trial Court Opinion, 2/3/22, at 1-4 (citations omitted).

The Commonwealth filed a motion to reconsider the order only as to the 

testimony of Officer Rennie. Because he had testified at the preliminary 

hearing, the Commonwealth argued that there was no unfair surprise as to 

the contents of his report. At argument on the motion to reconsider, the 

Commonwealth expanded its request and argued that all four officers should 
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be permitted to testify at trial. It contended that it had not violated the rules 

of discovery and, even if it had, a continuance attributed to the 

Commonwealth would cure any prejudice. The trial court denied the motion

and the Commonwealth appealed. The trial court did not order it to file a 

concise statement of issues complained of on appeal but filed an opinion in 

support of its order pursuant to Pa. R.A.P. 1925(a).

II.

The Commonwealth raises two issues on appeal: whether the trial court 

abused its discretion by precluding the officers’ testimony as a sanction for a

purported discovery violation, and whether the trial court erred in determining 

that the reports constitute Brady2 material.3

A.

Pretrial discovery is governed by the Rules of Criminal Procedure, which 

provide that before the parties engage in motions practice related to 

discovery, they must “make a good faith effort to resolve all questions of 

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2 Brady v. Maryland, 373 U.S. 83 (1963).

3 “Decisions involving discovery matters are within the sound discretion of the 

trial court and will not be overturned absent an abuse of that discretion.” 

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation 

and quotation marks omitted). “An abuse of discretion is not merely an error 

of judgment, but is rather the overriding or misapplication of the law, or the 

exercise of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record.” Id.

(citation and quotation marks omitted).
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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 further 

provides for discretionary discovery, on motion of the defendant, of “any other 

evidence specifically identified by the defendant, provided the defendant can 

additionally establish that its disclosure would be in the interests of justice.” 

Pa.R.Crim.P. 573(B)(2)(iv).

4

 The defendant must show that the evidence is 

material and that the request is reasonable. Pa.R.Crim.P. 573(B)(2). 

Additionally,

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.

Pa.R.Crim.P. 573(E).

Rule 573 imposes greater discovery obligations on the Commonwealth 

than Brady, as it requires disclosure of more than just exculpatory and 

material evidence. Commonwealth v. Maldonado, 173 A.3d 769 (Pa. 

Super. 2017). However, “[t]he Commonwealth does not violate Rule 573 

when it fails to disclose to the defense evidence that it does not possess and 

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4 The Rule also provides for items of mandatory discovery. Pa.R.Crim.P. 

573(B)(1). Neither the parties nor the trial court have claimed that the police 

reports fall under any of these categories.
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of which it is unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 

2008).

In contrast, there are three elements to establish a Brady violation: 

“(1) the evidence at issue was favorable to the accused, either because it is 

exculpatory or because it impeaches; (2) the prosecution has suppressed the 

evidence, either willfully or inadvertently; and (3) the evidence was material, 

meaning that prejudice must have ensued.” Commonwealth v. Bagnall, 

235 A.3d 1075, 1084 n.10 (Pa. 2020) (citations omitted). Evidence is material 

“if there is a reasonable probability that, had the evidence been disclosed to 

the defense, the result of the proceeding would have been different.” 

Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005) (citations 

omitted). The relevant question for the materiality analysis is “whether the 

favorable evidence could reasonably be taken to put the whole case in such a 

different light as to undermine confidence in the verdict.” Id. (citations 

omitted). If the evidence at issue implicates Brady, “the Commonwealth is 

charged with its possession even while it is exclusively in the custody of 

police.” Collins, supra, at 253.

B.

We first turn to whether the Commonwealth violated Rule 573 by failing 

to disclose police reports authored by the Lower Allen Township police when 

it did not have the reports in its possession. It is undisputed that the discovery 

process in this case proceeded informally. Boisey was represented by various 
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counsel throughout the pendency of the case but did not file a motion for 

discovery. The certified record does not include any details regarding the 

substance of his informal discovery request.5 Moreover, the record is clear 

that the Commonwealth did not receive the Lower Allen Township police 

reports until a few days before trial, after the trial court had already made 

clear that it would not grant any further continuances, and it disclosed the

reports to Boisey immediately upon receiving them.

Under these circumstances, the trial court committed an error of law in 

determining that the Commonwealth had violated its discovery obligations 

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5

In its opinion, the trial court stated “[t]here had been multiple requests for 

all police reports from both the [p]ublic [d]efender and [p]rivate [c]ounsel 

during the many months this case had been pending.” Trial Court Opinion, 

2/3/22, at 2. This factual finding is unsupported by the record. At the hearing 

on Boisey’s motion to preclude the officers from testifying, defense counsel 

explained that the public defender’s office had originally received voluminous 

discovery in the case. It provided discovery and a cover letter describing the 

contents to Boisey’s first retained private counsel on October 26, 2020. That 

attorney provided the same information to current defense counsel. Counsel 

explained that he asked the Commonwealth for the Lower Allen Township 

Police Department reports in an email the week of the hearing and at their 

meeting the night prior, and the Commonwealth did not have copies of the 

reports at that time. The Commonwealth provided the reports to defense 

counsel on the day of the hearing after receiving them for the first time. When 

the trial court asked the prosecutor whether there had been prior requests for 

police reports, she responded, “I would imagine so. I don’t remember 

specifically.” Notes of Testimony, 7/9/21, at 3; see also id. at 2 (“I believe 

that there were informal requests for reports. However, there was never any 

specific request for the Lower Allen reports; otherwise, we would have done 

exactly what happened in this case, where we immediately reached out to

Lower Allen, procured them and turned them over.”). There is no other

evidence of record regarding any other requests for discovery made by any 

counsel during the pendency of the case.
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under Rule 573. While the trial court’s frustration with the multiple 

continuances in this case is understandable, Rule 573(E) authorizes sanctions 

such as the exclusion of evidence only when “a party has failed to comply 

with” the rule. Pa.R.Crim.P. 573(E); Maldonado, supra, at 774. Rule 573 

explicitly provides that the Commonwealth’s obligation to disclose items of 

discretionary discovery attaches on motion of the defendant, which did not 

occur here. Compare Pa.R.Crim.P. 573(B)(2) (stating court may order 

discretionary discovery “if the defendant files a motion for pretrial discovery”) 

with Pa.R.Crim.P. 573(B)(1) (providing for mandatory discovery “on request

by the defendant” (emphasis added)).

Further, it is undisputed that the Commonwealth did not possess the 

police reports at issue until July 2021 and it immediately disclosed them to 

Boisey upon receipt. Because the Commonwealth was unaware of the reports 

and did not have them in its possession, it had no duty under the Rule to 

disclose them at any time prior. Collins, supra; see also Commonwealth 

v. Long, 753 A.2d 272, 278 (Pa. Super. 2000) (finding no rule violation when 

the prosecution disclosed videotape to defense immediately upon becoming 

aware of it shortly before trial). Thus, the trial court erred in precluding the 

officers’ testimony when the Commonwealth had not violated the Rule.6

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6 Boisey focuses his argument on whether the trial court’s chosen sanction of 

precluding the officers’ testimony was an abuse of discretion. See Boisey’s 

Brief at 8-11 (citing Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001; 

(Footnote Continued Next Page)
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C.

Next, the Commonwealth argues that the trial court improperly excluded 

the officers’ testimony pursuant to Brady when the police reports at issue 

were not exculpatory or impeaching and no prejudice ensued. However, the 

trial court does not appear to have relied on Brady as a basis for exclusion of 

the police reports. The order precluding the evidence does not reference 

Brady, and the single mention of Brady at the hearing was the trial court’s 

acknowledgement that Boisey could potentially raise such a claim post-trial. 

See Notes of Testimony, 7/8/21, at 4 (“I will grant whatever you want 

excluded from that. If it contains Brady information that would lead to the 

dismissal of the charges if he’s convicted, you can make that in a postsentence motion, and the Commonwealth will have to live with whatever those 

consequences are.”). The trial court’s opinion only cites to Rule 573 and does 

not contain any reasoning or cite any law related to Brady. Trial Court 

Opinion, 2/3/22, at 4-7. Accordingly, this issue is not before us and we do 

not address it further.7

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Commonwealth v. Smith, 955 A.2d 391 (Pa. Super. 2008); 

Commonwealth v. Galloway, 771 A.2d 65 (Pa. Super. 2001)). Because the 

Commonwealth did not violate Rule 573, we do not reach the question of 

whether preclusion of the evidence was an appropriate remedy.

7 As the trial court implicitly acknowledged at the hearing, Brady would 

provide Boisey with a potential claim for post-trial relief if the suppression of 

exculpatory or impeachment evidence had an impact on the trial proceedings. 

Lambert, supra (defining the materiality element of a successful Brady claim 

(Footnote Continued Next Page)
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Order reversed and case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/28/2022

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as requiring a reasonable probability that the outcome of the proceeding would 

have been different). At this juncture in the proceedings, when Boisey has 

not yet proceeded to trial, any litigation of a Brady claim would be premature 

because the materiality of the evidence cannot be assessed.