J-S11042-17

* Former Justice specially assigned to the Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA 

Appellant

v.

ROBERT PETER GILL, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1351 WDA 2016

Appeal from the Order Entered September 2, 2016

In the Court of Common Pleas of Mercer County 

Criminal Division at No(s): CP-43-CR-0000908-2015

BEFORE: OLSON, RANSOM, JJ., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 06, 2019

The Commonwealth appeals from the September 2, 2016, order entered 

in the Court of Common Pleas of Mercer County granting Appellee Robert Peter 

Gill, Jr.’s amended motion in limine for the admission of evidence of similar 

crimes, behaviors, and/or acts, as well as granting Appellee’s pre-trial 

discovery motion.1 The Commonwealth’s appeal is before us pursuant to the 

Pennsylvania Supreme Court’s Opinion of March 26, 2019, which reversed, in 

____________________________________________

1 The Commonwealth certified in its notice of appeal that the trial court’s order 

terminated or substantially handicapped its prosecution of Appellee. See 

Pa.R.A.P. 311(d). Also, we note that the Commonwealth’s appeal from the 

discovery order constitutes a collateral order subject to review. See 

Commonwealth v. Frey, 41 A.3d 605 (Pa.Super. 2012) (holding appeal from 

order requiring the Commonwealth to disclose investigative material in a

related case was appealable as a collateral order since it implicated rights 

deeply embedded in public policy).
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part, and vacated, in part, our March 28, 2017, disposition and remanded to 

us for consideration of an outstanding appellate issue. After careful 

consideration, we affirm.

Our Supreme Court relevantly set forth the facts and procedural history

underlying this appeal, in part, as follows:

On June 2, 2015, Trooper Charles Turik of the Pennsylvania 

State Police filed a criminal complaint against [Appellee] charging 

him with, inter alia, burglary, theft by unlawful taking, receiving 

stolen property, and criminal trespass. The supporting affidavit of 

probable cause explained, in relevant part, as follows.

On August 26, 2013, Trooper Turik was assigned to 

investigate an alleged burglary that occurred between July 26, 

2013, and August 26, 2013, at Howard Speichler’s residence on 

West Creek Road in French Creek Township. When Trooper Turik 

interviewed Speichler, he informed the trooper that someone had 

stolen $40,000 in $100 bills from his home. Speichler advised the 

trooper that he had been keeping the money in a bank bag inside 

of a lockbox in his basement and that the last time he knew that 

the money was still in the lockbox was July 26, 2013, when he 

placed his monthly deposit into the bag. Speichler explained that, 

since that time, he had not observed any signs of a forced entry 

into the home and that he suspected that the person who had 

stolen the money entered his home by way of the keypad for his 

garage door.

Speichler further stated that two persons knew both the 

garage code and where he kept his money: his neighbor and 

[Appellee], who was Speichler’s acquaintance. Speichler asserted 

that he did not suspect that his neighbor had stolen the money 

because Speichler had known her for over 25 years and trusted 

her. He further asserted that he had known [Appellee] for only a 

few years and that [Appellee] had financial problems, including a 

recent bankruptcy. Trooper Turik also interviewed [Appellee], 

who admitted that he knew: about Speichler’s money; that 

Speichler kept his money in the lockbox; and where Speichler put 

the key to that lockbox. The trooper’s investigation also revealed, 

inter alia, that [Appellee] recently had purchased a truck for 

$19,000 and that he had paid for the truck with $100 bills.
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[Appellee] was arrested and charged with the 

aforementioned crimes. Eventually, prior to his trial, [Appellee] 

filed a document entitled “Motion for Release of Investigatory 

Files/Omnibus Pretrial Motion.” In the motion, [Appellee] averred 

that he had just became aware, by way of articles in local 

newspapers, that Speichler accused another unknown person of 

stealing money from a safe located in his home between May 1, 

2016, and June 23, 2016. To inspect potential similarities 

between the 2013 and 2016 burglaries of Speichler’s home, 

[Appellee] asked the trial court to enter an order allowing him to 

access the State Police’s investigatory file concerning the 2016 

incident. The court granted [Appellee’s] motion.[2]

On August 1, 2016, [Appellee] filed a document entitled 

“Motion In Limine for Admission of Evidence of Similar Crimes” 

(“Motion In Limine”). Building upon his previous motion, 

[Appellee] stated that his review of the State Police’s file revealed 

substantial similarities between the 2013 burglary and incidents

that occurred at Speichler’s residence in 2016. Regarding the 

2016 incident, [Appellee] indicated that Speichler accused an 

unknown person of entering and burglarizing his home on two 

occasions – June 23, 2016, and June 26th or 27th of 2016.

[Appellee] stated that the allegations regarding the June 23, 

2016, burglary appeared to be virtually identical to the 

circumstances surrounding the 2013 burglary that he was accused 

of perpetrating. Specifically, [Appellee] averred that the June 23, 

2016, incident involved: (1) approximately $40,000 in stolen 

money; (2) money stolen from a safe/lockbox; (3) a perpetrator, 

perhaps known by Speichler, who used a key to access the 

safe/lockbox; (4) no sign of forced entry; rather, the perpetrator 

entered the home through a door that Speichler typically kept 

unlocked; [(5)] a perpetrator who knew about the safe/lockbox; 

and [(6)] a crime that occurred within a one-month time range. 

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2 Specifically, by order entered on July 13, 2016, the trial court directed the 

Commonwealth to permit defense counsel to review the police reports 

pertaining to the burglary allegations occurring between May 1, 2016, and 

June 23, 2016. The order did not pertain to the June 26/27, 2016, burglary 

allegations. Further, the order indicated the Commonwealth was not required 

to provide copies of the materials to defense counsel and specifically 

prohibited defense counsel from sharing with Appellee the information 

contained in the investigatory files without further court order. The 

Commonwealth did not appeal the July 13, 2016, order.
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[Appellee] did not describe the alleged June 26/27, 2016, incident 

in detail. In fact, he conceded that this incident differed from the 

other two burglary allegations in that it involved a forced entry 

into Speichler’s home. 

Regarding the admissibility of evidence concerning both the 

June 23rd and June 26th/27th incidents, [Appellee] contended that 

“[e]vidence is always relevant and material if it tends to show a 

specific crime of which a [d]efendant stands accused was 

committed by someone else.” Motion In Limine at ¶ 12. More 

specifically, [Appellee] relied on the Superior Court’s decision in 

Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 

(1981), for the proposition that a defendant may introduce 

evidence at trial that someone else committed a crime which bears 

a highly detailed similarity to the crime with which the defendant 

is charged. Motion In Limine at ¶ 14. [Appellee] further 

suggested that Speichler’s two newer, 2016 burglary allegations 

raise questions as to Speichler’s credibility and memory. Id. at ¶ 

20. [Additionally, in this motion, Appellee requested copies of the 

“June 2016 investigative reports” be provided to Appellee, with 

the restriction that the reports would be used solely in the course 

of Appellee’s trial.] Id. at ¶ 22. 

On August 25, 2016, prior to the trial court ruling on his 

Motion In Limine, [Appellee] filed another document, which he 

entitled “Amended Motion In Limine for Admission of Evidence of 

Similar Crimes, Behavior and/or Acts” (Amended Motion In 

Limine). In this motion, [Appellee] indicated that Speichler’s 

daughter, Sandra Speichler (“Sandra”), was prepared to testify 

that Speichler accused her of breaking into his home and stealing 

$30,000 in 1995. According to [Appellee], Sandra was also willing 

to testify that Speichler had informed her that two other persons, 

William Flamm and Roy Hiles, had broken into his home and stolen 

tools. Thus, in addition to the 2016 incidents regarding Speichler’s 

residence, [Appellee] asked the trial court to permit him to 

present evidence at trial that Speichler had accused Sandra, 

Flamm, and Hiles of stealing from his home.

On August 29, 2016, the trial court entertained oral 

argument of [Appellee’s] Amended Motion In Limine. [Appellee’s] 

argument was consistent with the position that he took in his 

written motions, i.e., that all of Speichler’s other burglary 

allegations were similar in nature to the allegations made against 

[Appellee], and therefore, tended to show that someone other 

than [Appellee] committed the 2013 break-in and that Speichler’s 

credibility was faulty. The Commonwealth, on the other hand, 
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contended that the trial court should deny the Amended Motion In 

Limine because the circumstances surrounding the 2013 burglary 

were insufficiently similar to the various incidents cited by 

[Appellee], rendering evidence of those incidents inadmissible at 

trial.

***

At the end of the hearing, the trial court denied in part and 

granted in part [Appellee’s] Amended Motion In Limine. 

Specifically, the court decided not to allow [Appellee] to present 

testimony from Sandra. However, the court believed that the June 

23, 2016, burglary was significantly similar and close enough in 

time to the 2013 burglary to allow [Appellee] to present evidence 

of it at his trial. Accordingly, the court entered an order reflecting 

“that the incident from 2016 shall be permitted.” Trial Court 

Order, 9/2/2016. In the same order, the court directed the 

Commonwealth to provide [Appellee] “all reports, statements and 

investigatory files regarding the 2016 incident[.]”[3] Id.

***

The trial court subsequently offered a brief Pa.R.A.P. 

1925(a) opinion. In support of its decision to grant in part

[Appellee’s] motion, the court noted several similarities between 

the 2013 and June 23, 2016, burglaries. In particular, the court 

observed that the “victim was the same, the amount of money 

was the same, there was no sign of forced entry, and the lockbox 

was accessed with a key.” Trial Court Opinion, 10/19/2016, at 1. 

The court further observed that it “found that these similarities 

were relevant” and that “the probative value of these facts 

outweighed the prejudicial effect to the victim.” Id. The court 

believed that, at a minimum, [Appellee] should be permitted to 

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3 As the Supreme Court noted, the trial court’s order was unclear as to whether 

the order related solely to the June 23, 2016, burglary or whether it included 

the subsequent June 26/27, 2016, burglary allegation. Out of an abundance 

of caution, in our initial decision, this Court addressed the admissibility of 

evidence concerning both 2016 incidents. However, upon review, the 

Supreme Court concluded that the trial court’s order related solely to the 

admissibility of the June 23, 2016, burglary, and Appellee had preserved solely 

issues related thereto. Commonwealth v. Gill, ___ A.3d ___, 2019 WL 

1348188, *3 n. 1 (Pa. filed 3/26/19). Similarly, the trial court’s order directing 

the Commonwealth to provide Appellee with all reports, statements, and 

investigatory files regarding “the 2016 incident” pertains solely to the June 

23, 2016, burglary. 
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cross-examine Speichler about the similarities between the 2013 

and the June 23, 2016, burglaries.

Commonwealth v. Gill, ___ A.3d ___, 2019 WL 1348188 (Pa. filed 3/26/19) 

(footnote omitted) (footnotes added) (internal citation omitted).

Additionally, in its Rule 1925(a) opinion, as to granting Appellee’s 

request for copies of the investigatory files for the June 23, 2016, burglary, 

the trial court explained the following:

With respect to the furnishing of investigatory files, this Court 

notes the previous court order dated July 11, 2016[,] issued by 

the Honorable Robert Yeatts. That order allowed Appellee access 

to the investigative files for the 2016 burglary. However, the 

Commonwealth was not required to provide copies. In light of the 

order of August 29, 2016, this Court finds it would now be 

appropriate for the Commonwealth to furnish copies with the 

understanding that [defense] counsel will not disseminate any 

information from those files without further order of court.

Trial Court Opinion, filed 10/16/2016, at 2.

As indicated supra, the Commonwealth filed a notice of appeal from the 

trial court’s order, and in a published Opinion, this Court held that the 2013 

and 2016 burglaries were not so similar, distinctive, or unusual to suggest 

that they were the handiwork of one individual. Commonwealth v. Gill, 158 

A.3d 719 (Pa.Super. 2017). “Based on the aforementioned, and additionally 

in light of the remoteness of time between the 2013 and 2016 incidents,” we 

held the trial court erred in permitting the entry of evidence from the 2016 
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burglaries.

4

 Id. at 727. Consequently, we reversed the trial court’s order and 

remanded for further proceedings. 

In light of our holding, we specifically noted that it was unnecessary for 

us to address the Commonwealth’s remaining issue: whether the trial court 

erred in ordering the Commonwealth to provide Appellee with copies of all 

reports, statements, and investigatory files regarding the 2016 burglary

incident. See id. at 727 n. 5. Specifically, we noted the trial court ordered 

such disclosure solely in support of its ruling that the 2016 incident was

admissible to prove Appellee did not commit the 2013 burglary, and as we 

reversed the order, it was unnecessary to address the remaining issue.5 See 

id.

Appellee subsequently filed a petition for allowance of appeal, which our 

Supreme Court granted. Specifically, the Supreme Court granted allowance 

of appeal to address the narrow issue of whether this Court applied the 

appropriate standard of review in reversing the trial court’s order. Ultimately, 

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4 As indicated supra, due to the ambiguous nature of the trial court’s order, 

we addressed the admissibility of the evidence regarding both the June 23, 

2016, burglary and June 26/27, 2016, burglary allegations; however, our 

Supreme Court concluded the trial court’s order related solely to the 

admissibility of the June 23, 2016, burglary.

5 As indicated supra, the trial court’s order directing the Commonwealth to 

furnish copies of the investigative reports pertains solely to the June 23, 2016, 

burglary.
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the Supreme Court concluded this Court “effectively substituted its judgment 

for that of the trial court.” Gill, supra, 2019 WL 1348188, at *7. 

Further, noting it was “intimately familiar with the application of the 

abuse-of-discretion standard of review,” id., the Supreme Court undertook its 

own review of the trial court’s order to determine whether the trial court 

abused its discretion in concluding the June 23, 2016, burglary was admissible 

at Appellee’s trial for the 2013 burglary. After indicating the admissibility of 

the evidence was “a close call,” and “[u]ltimately, reasonable minds may differ 

as to how a trial court should rule on [Appellee’s] Amended Motion In 

Limine[,]” the Supreme Court concluded the appellate court should defer to 

the trial court’s ruling. Id. at *7-8. 

Thus, the Supreme Court reversed this Court’s decision insomuch as it 

reversed the trial court’s order granting Appellee’s motion in limine. 

Additionally, the Supreme Court vacated the portion of this Court’s decision 

related to the issue of whether the Commonwealth was required to provide 

Appellee with copies of all reports, statements, and investigatory files 

pertaining to the June 23, 2016, incident, and remanded to this Court so that 

we could consider this remaining issue. With this procedural history in mind, 

we now turn to the Commonwealth’s remaining claim. 

The Commonwealth contends the trial court abused its discretion in 

ordering the Commonwealth to provide Appellee with copies of the reports, 

statements, and investigatory files pertaining to the June 23, 2016, burglary. 
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Specifically, the Commonwealth contends the material is not subject to 

mandatory discovery under Pa.R.Crim.P. 573(B)(1), and to the extent 

Appellee sought discovery of the material under Pa.R.Crim.P. 573(B)(2), the 

trial court abused its discretion. 

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. Smith, 955 A.2d 391, 394 (Pa.Super. 2008) (en banc). 

“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.” Commonwealth v. Antidormi, 84 

A.3d 736, 749-50 (Pa.Super. 2014) (citations omitted).

Initially, we note the trial court’s September 2, 2016, discovery order at 

issue, which directed “the Commonwealth shall provide to the defendant 

copies of all reports, statements and investigatory files regarding the 2016 

incident,” was premised upon, in part, the trial court’s July 13, 2016, order, 

which directed “the Commonwealth shall secure or provide access to the police 

reports contained in the Pennsylvania State Police investigation concerning 

allegations relating to the burglary/theft of the victim, Howard Speichler, 

between the dates of May 1, 2016, and June 23, 2016.” As indicated supra, 

the Commonwealth did not challenge on appeal the propriety of the July 13, 

2016, order. In any event, for the reasons discussed infra, we conclude the 
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trial court did not abuse its discretion in directing the Commonwealth to 

provide copies of all reports, statements, and investigatory files to Appellee 

regarding the June 23, 2016, burglary.

Pennsylvania Rule of Criminal Procedure 573 relevantly sets forth the 

following regarding disclosure of materials by the Commonwealth: 

(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.

(a) Any evidence favorable to the accused that is material 

either to guilt or to punishment, and is within the 

possession or control of the attorney for the 

Commonwealth;

(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;

(c) the defendant’s prior criminal record;

(d) the circumstances and results of any identification of 

the defendant by voice, photograph, or in-person 

identification;

(e) any results or reports of scientific tests, expert 

opinions, and written or recorded reports of polygraph 

examinations or other physical or mental examinations of 

the defendant that are within the possession or control of 

the attorney for the Commonwealth;

(f) any tangible objects, including documents, 

photographs, fingerprints, or other tangible evidence; and

(g) the transcripts and recordings of any electronic 

surveillance, and the authority by which the said 

transcripts and recordings were obtained.
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(2) Discretionary With the Court.

(a) In all court cases, except as otherwise provided in Rules 

230 (Disclosure of Testimony Before Investigating Grand 

Jury) and 556.10 (Secrecy; Disclosure), if the defendant 

files a motion for pretrial discovery, the court may order 

the Commonwealth to allow the defendant’s attorney to 

inspect and copy or photograph any of the following 

requested items, upon a showing that they are material to 

the preparation of the defense, and that the request is 

reasonable:

(i) the names and addresses of eyewitnesses;

(ii) all written or recorded statements, and substantially 

verbatim oral statements, of eyewitnesses the 

Commonwealth intends to call at trial;

(iii) all written and recorded statements, and substantially 

verbatim oral statements, made by co-defendants, and by 

co-conspirators or accomplices, whether such individuals 

have been charged or not; and

(iv) 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) (emphasis in original).

In the case sub judice, assuming, arguendo, the materials do not fall 

under Pa.R.Crim.P. 573(B)(1)’s mandatory discovery provision, we conclude 

the trial court did not abuse its discretion in ordering the Commonwealth6to 

disclose the requested items pursuant to Pa.R.Crim.P. 573(B)(2)(a)(iv). 

Under this Rule, Appellee had the burden of proving (1) his request for the 

copies of the reports, statements, and investigatory files pertaining to the 

____________________________________________

6 We note the Commonwealth has not averred the items are not in its 

possession. 
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June 23, 2016, burglary was material to the preparation of his defense, (2) 

the request was reasonable, and (3) the information disclosed by the request 

would be in the interests of justice. Commonwealth v. Garcia, 72 A.3d 681, 

684 (Pa.Super. 2013).

With regard to Appellee’s burden of proving the requested information 

was material and reasonable, Appellee was required to show a reasonable 

probability that the information gained from the discovery would lead to 

evidence that would exonerate him. See Commonwealth v. Belenky, 777 

A.2d 483 (Pa.Super. 2001). Here, Appellee sought discovery of the reports, 

statements, and investigatory files pertaining to the June 23, 2016, burglary 

on the basis that the items would demonstrate that he did not commit the 

2013 burglary with which he was charged. In this vein, Appellee averred in 

his pre-trial motion that the circumstances surrounding the 2016 burglary 

were identical to the circumstances surrounding the 2013 burglary allegation, 

thus leading to the conclusion that the same person committed both crimes.

Inasmuch as our Supreme Court granted allowance of appeal and held 

in the instant case that the trial court did not abuse its discretion in permitting 

Appellee to present evidence at trial regarding the 2016 burglary on the basis 

it was so “substantially similar” to the 2013 burglary as to reveal the 

handiwork of one individual, we conclude the trial court did not abuse its 

discretion in finding the requested items from the 2016 investigation were 

material and reasonable for purposes of Appellee’s preparation of his defense 
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for his trial on the 2013 burglary charges.

7

 Additionally, it follows that such 

disclosure would be in the interests of justice.8 See Garcia, supra.

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7 On appeal, the Commonwealth argues the instant case is indistinguishable 

from Commonwealth v. Novasak, 606 A.2d 477 (Pa.Super. 1992), in which 

this Court held the trial court did not abuse its discretion in denying the 

discovery request of the appellant, who was charged with various crimes after 

he pretended to be a police officer to gain access to a home. The appellant in 

Novasak sought information concerning police investigations of other 

robberies allegedly perpetrated by an actor who impersonated a police officer. 

However, in concluding the trial court properly denied the discovery request, 

this Court noted the appellant in Novasak never proffered to the trial court

the theory that he was the victim of a mistaken identification or that the 

charged offenses were committed by some other person. Consequently, in 

Novasak, we held the appellant did not establish that the police reports as to 

the other robberies perpetrated by police impersonators were material or the 

request was reasonable. 

However, in the case sub judice, unlike in Novasak, Appellee asserted 

to the trial court that he was not the person who committed the 2013 burglary 

and, as held by our Supreme Court, the trial court did not err in concluding 

the 2013 burglary and the June 23, 2016, burglary were so substantially 

similar that Appellee could present evidence that the person who committed 

the June 23, 2016, burglary was also the person who committed the 2013 

burglary with which Appellee was charged. 

8 We note the Commonwealth also refers to the common-law “executive 

privilege” recognized in Commonwealth v. Kauffman, 605 A.2d 1243

(Pa.Super. 1992), for the proposition that the trial court erred in ordering the 

Commonwealth to disclose privileged material. Assuming, arguendo, the 

Commonwealth adequately asserted the privilege in the lower court, the 

Commonwealth’s argument fails.

“Th[e executive privilege for information from government investigative 

files] is not absolute but qualified; and, when asserted, requires the court to 

balance the government’s interest in ensuring the secrecy of the documents 

whose discovery is sought against the need of the private litigant to obtain 

discovery of the relevant materials in possession of the government.” Id. at 

1247. Further, it has been observed that “the great majority of cases that 

have considered the discoverability of law enforcement investigations have 

held that in general such discovery should be barred in ongoing investigations, 
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For all of the foregoing reasons, we affirm.

Affirmed.

Judge Ransom did not participate in the consideration or decision of 

this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2019

____________________________________________

but should be permitted when the investigation and prosecution have been 

completed.” Id. 

Here, as Appellee notes in his brief, the investigation pertaining to the 

June 23, 2016, burglary of Mr. Speicher’s home is not ongoing. See Appellee’s 

Brief at 23-24. Rather, a review of the Court of Common Pleas of Mercer 

County’s certified docket reveals that Jamie Patrick Erdley pled guilty with 

regard thereto and was sentenced. See CP-43-CR-0001836-2016. Thus, the 

Commonwealth cannot demonstrate an interest in ensuring the secrecy of 

information that outweighs the need of Appellee to discover information which 

supports his claim that he did not commit the 2013 burglary. Id. Moreover, 

we note the trial court has directed that, while the Commonwealth is to furnish 

copies of the materials to defense counsel, such order was entered “with the 

understanding that [defense] counsel will not disseminate any information 

from those files without further order of court.” Trial Court Opinion, filed 

10/19/16, at 2.