J-S51022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES ALLEN MULLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 558 EDA 2018

Appeal from the Judgment of Sentence December 14, 2017

In the Court of Common Pleas of Pike County Criminal Division at No(s): 

CP-52-CR-0000527-2016

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED MAY 24, 2019

Appellant James Allen Muller appeals from the judgment of sentence 

imposed after a jury found him guilty of one count of endangering the welfare 

of children (EWOC).1 Appellant claims (1) the verdict was against the weight 

of the evidence, (2) the Commonwealth should have been precluded from 

moving previously undisclosed text messages and videos into evidence, and 

(3) the trial court abused its discretion when imposing an aggravated range 

sentence and requiring him to refrain from working and frequenting places 

where children under the age of eighteen are known to congregate.2 We 

____________________________________________

1 See 18 Pa.C.S. § 4304(a)(1). 

2 We have reordered Appellant’s issues for the purpose of this appeal. 
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affirm the conviction and the sentence of imprisonment, but vacate the trial 

court’s sentencing condition. 

A review of the trial record reveals the following. Appellant and his wife 

(Codefendant)3 came to the attention of police on December 20, 2015, after 

Appellant reported that their thirteen-year-old adopted daughter 

(Complainant) went missing. 

Several hours after the initial response, Pennsylvania State Trooper 

Keith Brislin arrived at Appellant’s and Codefendant’s home at approximately 

4:00 a.m. on December 21, 2015. Trooper Brislin conducted a quick search 

of the outside of the home, and obtained Appellant’s and Codefendant’s 

permission to search inside of the home. Inside the home, the trooper

discovered a room that lacked “any real furniture” and was “covered in plastic 

. . . that you would cover your windows with or something like that.” N.T.,

11/15/17, at 75. Additionally, the trooper observed a small black surveillance 

camera on the wall above a door in the room. Another camera was located 

downstairs by the entrance to the laundry room. The trooper later learned 

that the room was Complainant’s bedroom. 

Complainant was located at approximately 10:30 a.m. on December 21, 

2015, and taken to a hospital. Trooper Brislin made contact with Complainant

at the hospital, and observed bruises and cuts on Complainant’s body. The 

trooper took photographs of the injuries on Complainant’s face, left shoulder, 

____________________________________________

3 Codefendant’s appeal is considered in a companion decision at 203 EDA

2018, J-S51021-18.
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and back. Complainant then started to cry and told the trooper that the mark 

on her back was a bite mark. Complainant was later interviewed at the 

Children’s Advocacy Center and reported that Appellant and Codefendant 

mistreated her. 

On October 3, 2016, the Commonwealth charged Appellant with one 

count of EWOC.

4

 Appellant initially entered a negotiated guilty plea for a 

recommended standard range sentence, but filed a pre-sentence motion to 

withdraw his plea, which the trial court granted on March 6, 2017. 

Appellant and Codefendant proceeded to a joint jury trial that was held 

in November 2017. On the first day of testimony, Complainant described

living in Appellant and Codefendant’s home and the day that led to the 

investigation of Appellant and Codefendant.

Complainant stated that Appellant and Codefendant adopted her and 

her biological siblings after the death of her mother. Complainant and her 

biological siblings lived together with Appellant, Codefendant, and 

Codefendant’s biological children. 

According to Complainant, Appellant’s and Codefendant’s treatment of 

her worsened after her biological siblings left the home. Appellant and 

Codefendant locked her in her room upstairs, and she would have to knock on 

the door to exit. An alarm was also attached to the doorknob. Complainant

stated that the window of her room was kept open, the room was not heated, 

____________________________________________

4 Codefendant was charged on August 2, 2016. 
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and she was forced to sleep on the floor. Complainant described occasions 

when she snuck out of her room to other areas of the house to sleep near 

heaters. Complainant stated she received burns to her arm and stomach from 

the heaters. 

Complainant testified that Codefendant and Appellant permitted her to 

use one plate and one cup. Codefendant urged Complainant to keep the cup

completely full of water, but to drink all of the water in it. However, 

Complainant was not allowed to go to the bathroom without asking Appellant 

or Codefendant. Complainant explained that the plastic covering was put in 

her room because “there were days [she] would have accidents[ and] pee 

herself after not going to the bathroom.” N.T., 11/15/17, at 135.

Complainant further testified that she was given peanut butter and jelly 

sandwiches for breakfast, lunch, and dinner. However, when she did not take 

her medication, do her chores, or do her assignments, she would not eat. 

Complainant stated that “there w[ere] days that [she] wouldn’t eat.” Id. at 

170-71. 

Complainant stated that she and Codefendant would fight with their 

hands and that Codefendant disciplined her by hitting her with a leather belt. 

Complainant indicated that on one occasion, Codefendant struck her, and

Codefendant’s ring scratched her face, leaving one of the marks photographed 

by Trooper Brislin. 

Complainant acknowledged that she had personal difficulties while living 

with Appellant and Codefendant. Complainant explained that she began 
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cutting herself after she and one of her biological brothers had a fight, and 

that brother was removed from the home. Complainant admitted that she 

would hide hairpins and razors and cut herself with them. Complainant also 

admitted that she was hospitalized for cutting herself, depression, and suicidal 

thoughts in 2014, and saw a therapist when living with Appellant and 

Codefendant.

5

 

Complainant also described one altercation with Appellant and 

Codefendant, during which she grabbed a knife and stated she “wanted to 

die.” Id. at 179. Although Complainant did not recall injuring Appellant, 

Appellant received large cuts to his face. Complainant admitted that she 

previously ran away from the home. 

As to the events of December 20, 2015, Complainant testified that 

Codefendant went out shopping with Complainant’s adoptive sister and left 

Complainant at home with Appellant. According to Complainant, Appellant 

made her wait to go to bathroom, and she urinated on herself. When 

Codefendant returned home, Complainant and Codefendant began fighting.

Codefendant grabbed her by her shirt, dragged her across the floor, and 

locked her inside her room. Later, Complainant and Codefendant got into 

another fight during which Codefendant bit Complainant on the back. 

Codefendant then made Complainant take off her soiled clothes and throw 

them away. Codefendant sent Complainant outside in only a t-shirt and 

____________________________________________

5

It was undisputed that on one occasion, Codefendant brought Complainant 

to the therapist’s office with a plastic bag containing Complainant’s feces. 
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shorts. Complainant tried to get back inside once or twice, but then decided 

to leave. Complainant stayed overnight in a neighbor’s garage and was found 

the next morning. 

Before a recess on the second day of trial, the Commonwealth indicated 

at a sidebar conference that there was an objection to its intended witness. 

Codefendant’s counsel objected to the Commonwealth calling a witness to 

testify about an extraction of data from Codefendant’s cellphone. N.T., 

11/16/17, at 118. Codefendant’s counsel noted that an investigator had 

downloaded the entire contents of Codefendant’s phone to a flash drive, but 

only printed out a “six or seven-line text message from the thousands that 

were in there.” Id. The trial court recessed trial. 

The following morning, the trial court held a conference with counsel. 

See N.T., 11/17/17, at 5-15. During the conference, the Commonwealth 

explained that the Pennsylvania State Police initially seized Codefendant’s 

phone on February 3, 2016, when executing a search warrant. An investigator

extracted the contents of Codefendant’s phone to a flash drive and then 

returned Codefendant’s phone to Appellant on February 10, 2016.6 The 

Commonwealth asserted that it was entitled to admit the entire contents of 

____________________________________________

6 The “Lantern System” was used to extract all of the data from Codefendant’s 

phone. The Lantern System also produced a report of the data recovered from 

Codefendant’s phone. The contents of Codefendant’s phone and the 

accompanying report were placed onto a flash drive. See N.T., 11/17/17, at 

18-20. The flash drive is included in the record transmitted to this Court.
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Codefendant’s phone because Codefendant and Appellant were in actual 

possession of Codefendant’s phone. 

Codefendant’s counsel responded that Codefendant and Appellant lost 

Codefendant’s phone when their home was sold at a tax sale and noted that 

criminal charges were not filed until August of 2016. Codefendant’s counsel 

emphasized that the defense requested discovery, and that in response, the 

Commonwealth provided them with two text messages found on 

Codefendant’s phone. Codefendant’s counsel asserted that the

Commonwealth’s failure to provide information about the remaining contents 

of Codefendant’s phone violated its duty to disclose material information 

before trial. 

The Commonwealth presented three arguments in support of its proffer. 

First, the Commonwealth asserted that because Codefendant had equal access 

to the phone, it was under no obligation to disclose the entire contents of 

Codefendant’s phone or identify all of the materials it intended to use at trial.7 

Second, the Commonwealth suggested that Codefendant was aware that the 

Pennsylvania State Police extracted the contents of her phone, but did not file 

a motion requesting copies of the extracted data. Third, the Commonwealth 

questioned Codefendant’s assertions that Codefendant lost her phone, noting, 

____________________________________________

7 The Commonwealth cited Commonwealth v. Maldonodo, 173 A.3d 769 

(Pa. Super. 2017) (en banc), to support its arguments based on “equal 

access.”
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in part, that Codefendant’s counsel used photographs from Codefendant’s 

phone during cross-examination of the Commonwealth’s witnesses.8

Appellant’s counsel joined Codefendant’s objection. Appellant’s counsel 

observed that the time for discovery was shorter for Appellant than 

Codefendant given Appellant’s plea negotiations. Appellant’s counsel added 

that the admission of the evidence was prejudicial because the evidence 

lacked context.

The trial court overruled Codefendant’s objections, and the 

Commonwealth presented testimony regarding the entire contents of 

Codefendant’s phone and an extraction report. The Commonwealth moved 

into evidence the flash drive containing a copy of the entire contents of 

Codefendant’s phone as Exhibit 21. Additionally, the Commonwealth played 

nine videos recovered from Codefendant’s phone during its case-in-chief and 

used some of the videos during its closing argument.9 

____________________________________________

8 Appellant responded that the photographs she used during crossexamination were produced and preserved for a prior dependency proceeding 

involving Complainant. 

9 The record does not indicate whether the Commonwealth provided Appellant 

with copies of the flash drive, the extraction report, or the specific videos 

before presenting them at trial.

Our review reveals that the videos documented Codefendant verbally 

disciplining Complainant in a harsh tone. Two of the videos show Complainant 

eating ramen noodles with her fingers while Codefendant is heard talking to 

Complainant. In addition to playing the videos during its case-in-chief, the 

Commonwealth replayed some of the videos during its closing arguments. 

Appellant did not object to the specific publication or testimony regarding any 
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Appellant and Codefendant testified in their own defense. They denied 

abusing Complainant or depriving her of furniture, food, heat, or access to a

bathroom. Appellant and Codefendant asserted that Complainant’s behavior

deteriorated after she lived with them for a year. They stated they were 

concerned about Complainant cutting herself, stealing, smoking cigarettes, 

urinating and defecating in her room, and being physically aggressive toward 

them. Codefendant denied striking Complainant, but acknowledged that she 

would place Complainant in a “bear hug” when Complainant became 

aggressive. 

Codefendant indicated that on the day Complainant left the home, 

Complainant urinated in her room near a dresser. Codefendant and one of 

Complainant’s adoptive siblings moved the dresser out of the room. However, 

an altercation occurred when Codefendant confronted Complainant about 

cleaning up the urine. Codefendant stated that Complainant began striking 

her, but that she managed to place Complainant in a bear hug until 

Complainant calmed down. 

Codefendant testified that she went to her room to rest after the 

altercation. When Appellant told Codefendant that Complainant went outside 

to throw away her soiled clothes, Codefendant became worried because 

Complainant previously ran away from home. Appellant went back outside, 

____________________________________________

of the videos or the Commonwealth’s use of the videos at trial, and has not 

identified the specific portions the Commonwealth played at trial. 
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but Complainant was no longer there. Codefendant and Complainant’s 

adoptive sibling went out to search for Complainant, and Appellant called 

911.

10

 

Appellant and Codefendant both testified that Complainant previously

had a mattress in her room, but they removed it because Complainant hid

cutting implements and other stolen items in it. They asserted that they 

replaced the traditional mattress with an air mattress. 

On November 20, 2017, the jury found Appellant guilty of EWOC.11 On 

December 14, 2017, the trial court sentenced Appellant to an aggravated 

range sentence of twelve to twenty-four months’ imprisonment. The trial 

court also imposed the condition that Appellant “refrain from working at or 

frequenting places where children under the age of eighteen are known to 

congregate.” Sentencing Order, 12/14/17, at 2. 

On December 22, 2017, Appellant filed timely post-sentence motions

challenging, in relevant part, the weight of the evidence and the trial court’s 

sentence. The trial court denied the motions on January 29, 2018. 

____________________________________________

10 During cross-examination of Codefendant, the Commonwealth also 

questioned Codefendant about receiving social security benefits for 

Complainant. N.T., 11/20/17, at 85-87.

11 During closing arguments, the Commonwealth emphasized that Appellant 

was guilty of EWOC for “failing to protect [Complainant] and care for 

[Complainant] while [Codefendant] was physically assaulting her and . . . for 

the ongoing deprivation . . . .” N.T., 11/20/17, at 210. The Commonwealth 

characterized Appellant as the “silent partner.” Id. The jury deliberated for 

approximately one-and-a-half hours before finding Appellant and Codefendant 

guilty. 
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Appellant filed a timely notice of appeal on February 22, 2018, and 

complied with the court’s order to file and serve a Pa.R.A.P. 1925(b) 

statement. The court filed a Rule 1925(a) opinion. 

Appellant presents three issues, which we have reordered as follows:

1. Whether the jury verdict was against the weight of the evidence 

in that it was based primarily on emotion rather than on factual 

evidence. 

2. Whether the Commonwealth violated . . . Appellant’s due 

process by not providing contents of a flash drive containing data 

extracted from [Codefendant]’s cell phone after discovery 

requests were made, and whether the [t]rial [c]ourt erred in 

allowing the Commonwealth to provide only two or three text 

messages from the flash drive and to play parts of videos rather 

than entire video clips.

3. Whether the [t]rial [c]ourt erred in considering discretionary 

aspects of sentencing and in including the provision in the 

Sentencing Order that . . . Appellant “refrain from working and 

frequenting places where children under the age of eighteen are 

known to congregate.” 

Appellant’s Brief at 8.

In his first issue, Appellant suggests that he is entitled to a new trial 

because the verdict was against the weight of the evidence. Id. at 29-30. By 

way of background, Appellant challenged the weight of the evidence in his 

post-sentence motion, asserting that “there [wa]s no credible evidence to 

establish the elements of [EWOC] based on the record as against [Appellant], 

and therefore the verdict [wa]s against weight of the evidence.” Post 

Sentence Mot., 12/22/17, at 21. The trial court denied the motion, reasoning: 

The jury was free to assess the credibility of each witness as they 

testified and was free to weigh the evidence as it was presented 
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to them. Furthermore, the jury had the opportunity to assess 

Appellant’s credibility as he presented his own testimony and to 

weigh the evidence that defense counsel presented on his behalf.

Trial Ct. Op., 4/20/18, at 10. The court also emphasized that it instructed the 

jury to make its decision based on the evidence. Id. 

On appeal, Appellant insists that the verdict was the product of emotion 

rather than the evidence. Appellant’s Brief at 30. In support, Appellant 

focuses on the admission of the videos from Codefendant’s phone and portions 

of the Commonwealth’s closing argument, which Appellant alleges improperly 

diverted the jury from deciding the case based on the evidence. Id. at 30-

31. Appellant’s argument ends with a citation to a case involving a claim of 

prosecutorial misconduct.12 Id. at 31 (citing Commonwealth v. DeJesus, 

860 A.2d 102, 114 (Pa. 2004), for the proposition that the Commonwealth’s 

closing argument should be limited to the evidence and legitimate inferences 

from the evidence).

It is well settled that

[a] claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether the verdict 

was against the weight of the evidence. It is well settled that the 

[fact-finder] is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses, and a new trial 

based on a weight of the evidence claim is only warranted where 

the [fact-finder’s] verdict is so contrary to the evidence that it

shocks one’s sense of justice. In determining whether this 

____________________________________________

12 We note that at trial, Appellant did not raise a prosecutorial misconduct 

objection to the Commonwealth’s closing argument. See N.T., 11/20/17, at 

214, 221, 230; Pa.R.A.P. 302(a).
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standard has been met, appellate review is limited to whether the 

trial judge’s discretion was properly exercised, and relief will only 

be granted where the facts and inferences of record disclose a 

palpable abuse of discretion. 

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation 

omitted). 

Moreover, 

[a] new trial should not be granted because of a mere conflict in 

the testimony or because the judge on the same facts would have 

arrived at a different conclusion. Rather, the role of the trial court 

is to determine that notwithstanding all the evidence, certain facts 

are so clearly of greater weight that to ignore them, or to give 

them equal weight with all the facts, is to deny justice. A motion 

for a new trial on the grounds that the verdict is contrary to the 

weight of the evidence concedes that there is sufficient evidence 

to sustain the verdict; thus the trial court is under no obligation 

to view the evidence in the light most favorable to the verdict 

winner. 

Id. (citation omitted). 

Following our review of the record, Appellant’s arguments, and the 

relevant law, we find no merit to Appellant’s issue. Notably, Appellant fails to 

acknowledge or discuss Complainant’s testimony. As noted by the trial court, 

Complainant’s testimony established that she endured deprivations and abuse 

while living with Appellant and Codefendant. Although Appellant and 

Codefendant denied Complainant’s allegations, the trial court properly 

concluded that it was within province of the jury, as the finder of fact, to credit 

Complainant’s testimony and determine that Appellant violated his duty to 

protect and care for Complainant. See id.; see also 18 Pa.C.S. § 4304(a)(1). 
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Accordingly, the trial court did not abuse its discretion in rejecting Appellant’s 

challenge to the weight of the evidence. 

In his next issue, Appellant contends that the Commonwealth violated 

his due process rights by failing to disclose all of the text messages and videos 

recovered from Codefendant’s phone before trial. As noted above, the parties 

litigated the Commonwealth’s proffer of text messages and videos from 

Codefendant’s phone on the third day of trial, and the trial court overruled 

Appellant’s objections. 

The trial court, in its Rule 1925(a) opinion, explained its ruling as 

follows: 

At trial, Detective Christian Robinson testified that he was 

contacted by Corporal Smith to run a forensic extraction on 

[Codefendant’s] cell phone. He also testified as to how the data 

was obtained from [Codefendant’s] cell phone using the Lantern 

software system. He testified that the extraction report was 

performed on February 8, 2016. He testified that the extraction 

process would have no effect on or alter the contents of 

[Codefendant’s] cell phone in any way. He testified that the 

contents of the reports generated by the Lantern software system 

would be an exact replica of the contents of [Codefendant’s] cell 

phone. He testified that after he had completed the forensic 

extraction, he returned [Codefendant’s] cell phone in its original 

state to Corporal Smith. Finally, he testified that he copied the 

reports generated by the Lantern software system in their entirety 

onto the flash drive used by the Commonwealth at trial. 

[Codefendant’s] cell phone was returned to Appellant on February 

10, 2016. 

The Commonwealth has no duty to provide evidence in a form that 

the defendant demands for the convenience of the defense. 

Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super. 

2015). “If the Commonwealth is secure from a post-trial Brady[13]

____________________________________________

13 Brady v. Maryland, 373 U.S. 83 (1963).
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challenge on the grounds that the evidence was disclosed and 

accessible to defense counsel, it cannot simultaneously be 

precluded from entering portions of that evidence due to sheer 

speculation that counsel, despite that equal access, would 

presumptively fail to examine that material. [Maldonodo, 173 

A.3d at 783-84]. . . . 

The thumb drive contained the entire contents of [Codefendant]’s 

cell phone; therefore, when the cell phone was returned to 

Appellant by the state police on February 10, 2016, the evidence 

was equally available to Appellant. The evidence was no longer in 

the “exclusive control” of the Commonwealth. This is not an issue 

of the Commonwealth’s constitutional duty of disclosure. 

Although Appellant argued during trial that the cell phone was 

[Codefendant]’s and therefore he may have not had equal access 

to it, we would point out that Appellant participated in making 

those videos. Appellant used [Codefendant]’s cell phone to film 

the videos. He was aware of what was on [Codefendant’s] cell 

phone before it was even seized by the state police. He was 

subsequently aware that the Commonwealth had the entire 

contents of [Codefendant]’s cell phone well before trial 

commenced. 

During trial, the Commonwealth noted that discovery was 

provided to [Codefendant] on January 24, 2017. Counsel for 

Appellant noted that she was not sure whether this was the date 

that discovery was provided to [Codefendant] only or whether it 

was also provided to her client. However, we would note that 

Appellant did not file a motion to compel or specifically request 

that the Commonwealth disclose the entire contents of the thumb 

drive or the report of the data extracted after [Codefendant’s]

phone was seized. Furthermore, based on . . . testimony as to 

the extraction process, the contents of the cell phone were not 

altered in any way before it was returned to Appellant. Therefore, 

the evidence was disclosed and accessible to Appellant and 

counsel. 

Once the Commonwealth had put the entire contents of the thumb 

drive into evidence, Appellant was free to display other text 

messages and play other videos and/or parts of videos previously 

published by the Commonwealth for the jury’s consideration. 

Trial Ct. Op. at 8-10. 
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On appeal, Appellant challenges the factual basis of the trial court’s 

conclusion in the Rule 1925(a) opinion that he possessed Codefendant’s

phone. Appellant’s Brief at 27-29. Appellant concedes that the Pennsylvania 

State Police returned Codefendant’s phone to him in February 2016. Id. at 

27. However, Appellant emphasizes the Commonwealth did not initiate 

criminal proceedings against him until October 2016. Id. at 29. Appellant 

suggests that sometime after the Pennsylvania State Police returned 

Codefendant’s phone, but before trial, Codefendant’s phone was lost, when he 

“lost his home and its contents as a result of a tax sale on the property.”14 

Id. at 27-28. Lastly, Appellant notes that Codefendant owned the phone. Id. 

Additionally, Appellant contends that he suffered prejudice because the 

videos were published to the jury and not played in their entirety. Id. at 27. 

According to Appellant, “[t]he selected videos portrayed [Codefendant] in a 

very unflattering matter” and were not directly relevant to any of the charges 

against Appellant or Codefendant. Id. at 27-28. In a single sentence, 

Appellant avers that Codefendant’s phone contained exculpatory evidence. 

Id. at 28.

“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 

____________________________________________

14 Appellant does not indicate when he was denied access to his home or the 

phone, and the record does not indicate whether the tax sale occurred before 

or after charges were filed in this matter. 
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and quotation marks omitted), appeal denied, 189 A.3d 986 (Pa. 2018). “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).

The purpose of the discovery rules is to prevent a trial by ambush that 

violates a defendant’s right to due process. Commonwealth v. Ulen, 650 

A.2d 416, 419 (Pa. 1994) (discussing the prior version of Pa.R.Crim.P. 573). 

Pennsylvania Rule of Criminal Procedure 573 provides, in relevant, part: 

(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;

* * *

(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; [and]

(f) any tangible objects, including documents, photographs, 

fingerprints, or other tangible evidence[.]
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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:

* * *

(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.

* * *

(E) Remedy. 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(B)(1)(a)(e)-(f), (2)(a)(iv), (E). 

The duties to disclose information imposed by Brady and Rule 573 are 

overlapping, but they are not identical. See Maldonodo, 173 A.3d at 774; 

see also Commonwealth v. Sullivan, 820 A.2d 795, 802-03 (Pa. Super. 

2003). The focus of Brady is the prompt disclosure of evidence that is 

favorable to the defense, which is incorporated in Rule 573(b)(1)(a). Rule 
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573 is broader to the extent it requires disclosure of inculpatory information. 

See Sullivan, 820 A.2d at 803-804. 

Nevertheless, this Court has often analyzed claims involving Rule 573 

using principles from Brady. Id. For example, in the context of Brady, it is 

well-settled that “no Brady violation occurs where the parties had equal 

access to the information or if the defendant knew or could have uncovered 

such evidence with reasonable diligence.” Commonwealth v. Morris, 822 

A.2d 684, 696 (Pa. 2003) (citation omitted). In the context of Rule 573, this 

Court has also noted: “Where evidence is equally accessible to both the 

prosecution and the defense, the latter cannot employ [the discovery rules] 

against the Commonwealth.” See Santos, 176 A.3d at 883 (citations 

omitted).

Furthermore, Rule 573 does not require the Commonwealth to divulge 

its trial tactics or how it may use certain information, and defense counsel has 

a duty to investigate available information for possible evidence. See 

Maldonodo, 173 A.3d at 783-84; Commonwealth v. Monahan, 549 A.2d 

231, 235 (Pa. Super. 1988). Similarly, Rule 573 does not entitle a defendant 

to information in a form most helpful or convenient to the defendants. See 

Maldonodo, 173 A.3d at 783; Robinson, 122 A.3d at 373-74. Nevertheless, 

courts have cautioned that “[b]ecause we are dealing with an inevitably 

imprecise standard [regarding materiality], and because the significance of an 

item of evidence can seldom be predicted accurately until the entire record is 
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complete, the prudent prosecutor will resolve doubtful questions in favor of 

disclosure.” Maldonodo, 173 A.3d at 781-82 (citation omitted). 

Even if the Commonwealth violates the disclosure requirements of Rule 

573, 

[t]he trial court has broad discretion in choosing the appropriate 

remedy for a discovery violation. . . . A defendant seeking relief 

from a discovery violation must demonstrate prejudice. A 

violation of discovery “does not automatically entitle [an] 

appellant to a new trial.” Rather, [the defendant] must 

demonstrate how a more timely disclosure would have affected 

his trial strategy or how he was otherwise prejudiced by the 

alleged late disclosure.

Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citations 

omitted). This Court has suggested that in most cases, “[a] continuance is 

appropriate where the undisclosed statement or other evidence is admissible 

and the defendant’s only prejudice is surprise.” Commonwealth v. Smith, 

955 A.2d 391, 395 (Pa. Super. 2008) (en banc) (citation omitted). 

Instantly, as noted by the trial court, Appellant was aware that the 

Pennsylvania State Police seized and analyzed Codefendant’s phone, and that 

the Commonwealth recovered evidence from Codefendant’s phone. 

Additionally, the record supports the trial court’s findings that Codefendant’s 

phone was returned to Appellant before criminal charges were filed, and that 

Appellant was aware that Codefendant’s phone could have contained 

unfavorable evidence.

Yet, there is also no dispute that Appellant requested discovery after the 

charges were filed, and that the Commonwealth had in its possession the 
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Lantern report and the entire contents of Codefendant’s phone. In response 

to Appellant’s request for discovery, the Commonwealth provided copies of 

two text messages that it extracted from Codefendant’s phone. The record 

contains no indication that the Commonwealth provided Appellant with a copy 

of the extraction report or a copy of the flash drive in response to 

Codefendant’s request for pretrial discovery, or before seeking admission of 

the contents of Codefendant’s phone at trial. 

Under these circumstances, we do not read Maldonodo and Robinson

as broadly as the Commonwealth and the trial court. In Maldonado and 

Robinson, the Commonwealth disclosed information before trial, i.e., 

recordings of the defendant’s Spanish language prison calls in Maldonodo, 

and a recording of a victim’s interview in Robinson. See Maldonodo, 173 

A.3d at 771; Robinson, 122 A.3d at 373. In Maldonodo, the Commonwealth 

specifically identified two phone calls it believed were inculpatory, but 

disclosed all of the recordings the defendant’s 466 prison phone calls. 

Maldonodo, 173 A.3d at 771-72. The issue in those cases was whether the 

Commonwealth had duties to provide the defense with additional information,

such as a certified translations of the prison calls or a transcript of the video 

recording. See Maldonodo, 173 A.3d at 781; Robinson, 122 A.3d at 373. 

This Court, in both Maldonodo and Robinson, reversed the trial court’s 

pre-trial ruling precluding the Commonwealth from presenting evidence based 

on the failure to provide additional information. See Maldonodo, 173 A.3d 

at 771; Robinson, 122 A.3d at 369. In so doing, this Court noted that the 
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Commonwealth had no duty to assist the defendant in finding evidence 

favorable to the defendant when the Commonwealth provided the information 

to the defense. See Maldonodo, 173 A.3d at 783; Robinson, 122 A.3d at 

371.

The present case, however, raises different issues and facts than those 

addressed in Maldonodo and Robinson. First, the information here 

contained evidence that was unfavorable to the defense. Second, the 

Commonwealth did not provide the information in its possession during 

discovery. Indeed, there is no indication in the record that the Commonwealth 

even provided Appellant and Codefendant’s counsel with a courtesy copies of 

the flash drive when it moved the contents of Codefendant’s phone into 

evidence. Third, unlike Maldonodo, the Commonwealth initially indicated 

that it intended to use two text messages at trial, but then moved the entire 

contents of Codefendant’s phone into evidence.

Therefore, we do not find Maldonodo and Robinson to be controlling 

authorities in this case. Accordingly, we do not agree with the trial court’s 

legal reasons for excusing the Commonwealth of any duty to disclose 

unfavorable evidence under Rule 573. 

Even if the Commonwealth violated Rule 573, however, Appellant did 

not assert any unfair prejudice to his ability to form or present his defense. 

See Brown, 200 A.3d at 993; accord Smith, 955 A.2d at 395. The fact that 

Appellant was, or should have been, aware of the additional unfavorable 

videos on the phone belies Appellant’s claim of surprise. Moreover, Appellant 
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did not request a continuance to review the additional evidence. Under these 

circumstances, we conclude Appellant has not established that the admission 

of the entire contents of Codefendant’s phone constituted reversible error 

under Rule 573. See Santos, 176 A.3d at 882.

Appellant next challenges the trial court’s sentence. Appellant presents 

two claims which we address separately. 

Appellant initially claims that the trial court’s aggravated range sentence 

of one to two years’ incarceration was unreasonable.15 Appellant argues that 

“[t]he trial court did not impose a sentence that would reasonably meet [his] 

rehabilitative needs.” Appellant’s Brief at 17. Appellant notes that the trial 

court had two presentence investigation reports (PSI) prepared—one following 

his plea, and one following trial. Id. at 20. According to Appellant, he was 

interviewed for the first PSI, but not for the second. Id. Appellant asserts 

that “[t]he only significant change regarding . . . Appellant’s status during the 

intervening months between the preparation of the [PSIs] was . . . Appellant’s 

withdrawal of his guilty plea and decision to have a jury trial.” Id. at 31. 

Appellant also suggests that the trial court could have ordered him to serve 

his sentence in a county correctional facility as opposed to a state correctional 

____________________________________________

15 Appellant’s conviction of EWOC was graded as a misdemeanor of the first 

degree, which carries a maximum term of five years’ incarceration. See 18 

Pa.C.S. § 4304(a)(1), (b)(1)(i); see also 18 Pa.C.S. § 1104(1). Appellant’s 

conviction carried an offense gravity score of five and his prior record score 

was zero. See 204 Pa.Code § 303.15. The guidelines, therefore, 

recommended a minimum sentence between restorative sanctions and nine 

months’ imprisonment, plus or minus three months for aggravating or 

mitigating circumstances. See 204 Pa.Code § 303.16(a). 
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institution. Id. at 13, 19-20, 23. He notes that in light of the fact that he 

was in custody for 497 days before sentencing, he has “little to no ability to 

seek parole” before serving his maximum sentence. Id. 

It is well settled that 

[c]hallenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant challenging 

the discretionary aspects of his sentence must invoke this Court’s 

jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s 

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether 

there is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code, 42 

Pa.C.S.[ ] § 9781(b).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some 

citations omitted), appeal denied, 172 A.3d 592 (Pa. 2017). “A substantial 

question exists only when the appellant advances a colorable argument that 

the sentencing judge’s actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.” Id. (citation and quotation marks 

omitted).

Here, Appellant preserved his challenges to the sentence of 

imprisonment in a post-sentence motion, timely appealed, and set forth a 

concise statement of the reasons relied on for allowance of appeal. See id. 

However, we find no substantial questions arising from Appellant’s assertions 
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that the trial court could have ordered him to serve his sentence in a county 

facility or that he will likely serve his entire sentence in prison. See 

Commonwealth v. Lee, 876 A.2d 408, 413 (Pa. Super. 2005). Appellant’s

arguments that the trial court imposed an aggravated range sentence based 

on his decision to withdraw his plea and without considering Appellant’s 

mitigating circumstances do raise substantial questions, and we consider 

those claims. See Commonwealth v. Moury, 992 A.2d 162, 170-71 (Pa. 

Super. 2010). 

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation 

omitted). 

Section 9781(d) sets forth the factors considered by this Court in 

evaluating the reasonableness of a sentence:

(d) Review of record.—In reviewing the record the appellate 

court shall have regard for:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d). Where a presentence investigation report exists, we 

shall “presume that the sentencing judge was aware of the relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Walls, 926 A.2d 957, 967 n.7 (Pa. 2007) (citation omitted). “Even if a 

sentencing court relies on a factor that should have not been considered, there 

is no abuse of discretion when the sentencing court has significant other 

support for its departure from the sentencing guidelines.” Commonwealth 

v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008) (citations omitted); 

Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa. Super. 2006).

Instantly, the trial court stated its reasons for imposing a sentence of 

one to two years’ imprisonment as follows: 

The [c]ourt has had the benefit in this matter of a [PSI] and the 

record presented. The [c]ourt has also had the benefit to review 

the character reference letters that have been provided by 

defense counsel today and those will be included with the [PSI] in 

this matter. The [c]ourt would note that it was the presiding 

Judge over the Jury Trial in this matter and the Jury concluded 

that [Appellant] was guilty of the sole [c]harge of [EWOC]. The 

[c]ourt notes among other things that the crime committed in this 

matter although not complete does consist of acts of omission. 

There were acts however that I believe the evidence would 

support [acts] of commission. The [c]ourt notes based upon that 

that it found as well that [Appellant] did not take proper action 

when presented with [Codefendant]’s physical and mental abuse 

of [Complainant]. The evidence of false imprisonment, unlawful 

restraint in the [c]ourt’s estimation are indeed abnormal and the 

evidence and that would apply to [Codefendant] but the [EWOC]
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[c]harge is tied into [Codefendant]’s actions and the [c]ourt finds 

the evidence of the [EWOC] in this matter to be likewise abnormal 

from an [EWOC] case the [c]ourt may normally see coming 

through the Court system. 

N.T., 12/14/17, at 12-13. 

In its sentencing order, the trial court further found an aggravated range 

sentence was appropriate because (1) Appellant took no responsibility for the 

offense and blamed Complainant, (2) Complainant was vulnerable due to her 

youthful age while she was in Appellant’s care, (3) Appellant showed no 

remorse towards Complainant’s injury, and (4) a lesser sentence would 

depreciate the seriousness of the offense. Order, 12/15/17. 

Following our review, we find no merit to Appellant’s contention that the 

trial court failed to consider Appellant’s mitigating circumstances. See N.T., 

12/14/17, at 12-13; see also Walls, 926 A.2d at 967 n.7. We also agree 

with the trial court’s determination that the instant case presented an unusual 

case of EWOC based on Appellant’s acts and omissions and his failure to 

protect Complainant from Codefendant. See N.T., 12/14/17, at 13. 

Appellant’s suggestion that the trial court sentenced him in the aggravated 

range based on his decision to proceed to trial lacks record support.

We acknowledge that the trial court’s order cited inappropriate reasons 

for sentencing in the aggravated range, including fact that Complainant was 

vulnerable due to her youthful age and was in the care of Appellant. See

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (en banc) 

(noting that “when fashioning a sentence, a sentencing court may not ‘double 
J-S51022-18

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count’ factors already taken into account in the sentencing guidelines”

(citations omitted)). Nevertheless, having reviewed the record as a whole, 

we conclude that the trial court’s sentence was reasonable in light of its 

findings at the sentencing hearing, and that the court did not impermissibly 

rely on an improper fact. See 42 Pa.C.S. § 9781(d); Sheller, 961 A.2d at 

192. Accordingly, Appellant’s challenge to the sentence of imprisonment

merits no relief. 

Appellant next claims the trial court abused its discretion in requiring 

that he refrain from working and frequenting places where children under the 

age of eighteen congregate. Appellant’s Brief at 24. Appellant, in a single 

sentence in his brief, asserts that this condition was “vague and burdensome 

as it is likely to hinder his ability to gain employment and move forward with 

his life following a lengthy incarceration.” Id. 

As a general matter, this Court has considered a challenge to a condition 

imposed as a part of parole or probation as a challenge to the discretionary 

aspect of the sentence. See Commonwealth v. Hermanson, 674 A.2d 281, 

282 (Pa. Super. 1996); Commonwealth v. Koren, 646 A.2d 1205, 1207 (Pa. 

Super. 1994). A claim that a probation condition is overbroad goes to the 

discretionary aspects of a sentence. See Commonwealth v. Houtz, 982 

A.3d 537, 538 (Pa. Super. 2009); Commonwealth v. Hartman, 908 A.2d 

316, 319 (Pa. Super. 2006). 

However, the statutory authority of a court to impose a challenged 

condition raises legality of sentence concerns. See Commonwealth v. 
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Melvin, 103 A.3d 1, 52 (Pa. Super. 2014) (en banc). “Challenges to an illegal 

sentence cannot be waived and may be reviewed sua sponte by this Court.” 

Id. (citations omitted). 

The Sentencing Code provides:

(a) General rule.—In determining the sentence to be imposed 

the court shall, except as provided in subsection (a.1), consider 

and select one or more of the following alternatives, and may 

impose them consecutively or concurrently:

(1) An order of probation.

(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine.

(6) County intermediate punishment.

(7) State intermediate punishment.

42 Pa.C.S. § 9721(a). 

Notably, Section 9756, which governs the imposition of a sentence of 

total confinement, contains only a limited provision for setting conditions for 

a “reentry plan.” See 42 Pa.C.S. § 9756(b)(3), (e). Section 9756(e) defines 

a reentry plan as “a release plan that may include drug and alcohol treatment, 

behavioral health treatment, job training, skills training, education, life skills 

or any other condition deemed relevant by the court.” 42 Pa.C.S. 9756(e). 

Section 9756(b)(3) states, in relevant part: 

Except where the maximum sentence imposed is two years 

or more, and except where a mandatory minimum sentence of 

imprisonment or total confinement is required by law, the court 
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shall, at the time of sentencing, state whether or not the 

defendant is eligible to participate in a reentry plan at any time 

prior to the expiration of the minimum sentence or at the 

expiration of a specified portion of the minimum sentence.

42 Pa.C.S. § 9756(b)(3). 

By contrast, Section 9754 authorizes a trial court to impose conditions 

of probation, including requiring a defendant to “satisfy any other conditions 

reasonably related to the rehabilitation of the defendant and not unduly 

restrictive of his liberty or incompatible with his freedom of conscience.” 42 

Pa.C.S. § 9754(c)(13). Similarly, Section 9763, permits the trial court to 

impose conditions on a defendant’s sentence to county intermediate 

punishment to “do other things reasonably related to rehabilitation.” 42 

Pa.C.S. § 9763(b)(15); Melvin, 103 A.3d at 53.

In Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009) 

this Court considered a trial court’s sentencing order authorizing random 

searches of a defendant’s residence as a condition of parole. We explained:

If no statutory authorization exists for a particular sentence, 

that sentence is illegal and subject to correction. An illegal 

sentence must be vacated. In evaluating a trial court’s 

application of a statute, our standard of review is plenary 

and is limited to determining whether the trial court 

committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-[02] (Pa.

Super. 2006) (internal citations omitted).

In the instant matter, the language in the sentencing order is as 

follows:

AND NOW, this 18th day of March, 2008, it is hereby 

ORDERED that as a condition of [the defendant’s] probation 

and/or parole on the charge of Violation of the Uniform 
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Firearms Act (VUFA), section 6105, and for the duration of 

[the defendant’s] probation and/or parole period, [the 

defendant] is subject to random searches of his/her 

residence. The search will be limited to the space occupied 

by [Appellant]. The searches will be conducted by the 

agents of the Gun Violence Task Force.

Sentencing Order 3/18/08.

First, we note that the trial court did not sentence [the defendant] 

to probation; thus, there can be no probation conditions. 

Secondly, because the court sentenced [the defendant] to a 

maximum term of incarceration of two or more years, [the 

defendant]’s parole would be under the exclusive supervision of 

the Pennsylvania Board of Probation and Parole (“PBPP”) and not 

the Court of Common Pleas. 61 P.S. § 331.17, and see 

Commonwealth v. Camps, 772 A.2d 70, 74 (Pa. Super. 2001) 

(holding that “It is well settled that the Pennsylvania Board of 

Probation and Parole has exclusive authority to determine parole 

when the offender is sentenced to a maximum term of 

imprisonment of two or more years.”). Therefore, any condition 

the sentencing court purported to impose on [the defendant]’s 

state parole is advisory only. See 61 P.S. § 331.18 (A judge in his 

discretion may make at any time any recommendation he may 

desire to the board respecting the person sentenced and the term 

of imprisonment said judge believes such person should be 

required to serve before a parole is granted to him, but a 

recommendation made by a judge as aforesaid respecting the 

parole or terms of parole of such person shall be advisory only, 

and no order in respect thereto made or attempted to be made as 

a part of a sentence shall be binding upon the board in performing 

the duties and functions herein conferred upon it.) (emphasis 

added).

Id. at 1211-12 (alterations in original omitted); accord Commonwealth v. 

Coulverson, 34 A.3d 135, 141-42 (Pa. Super. 2011)

Here, as in Mears, the trial court sentenced Appellant to a sentence of 

total confinement with a maximum of two years’ imprisonment. That sentence 

required supervision by the Pennsylvania Board of Probation and Parole. In 
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imposing that sentence, the court divested itself of the statutory authority to 

add a probation condition to its sentence under Section 9754. See Mears, 

972 A.2d a 1211-12. The court, furthermore, lacked the statutory authority 

to impose a requirement of parole. See id. The court provided no other 

statutory basis to impose a sentencing condition under these circumstances, 

and our own review reveals no basis for the trial court to have done so.

16

 

Therefore, we are constrained to vacate the sentencing condition prohibiting 

Appellant from working and frequenting places where children under the age 

of eighteen congregate as illegal.17 See id.

Therefore, we vacate the condition that prohibits Appellant from working 

or frequenting places where children under the age of eighteen are known to 

congregate. However, our decision does not disturb the overall sentence, and 

there is no need to remand this matter for resentencing. See Melvin, 103 

A.3d at 56. 

Judgment of sentence affirmed in part and vacated in part. Jurisdiction 

relinquished. 

____________________________________________

16 The EWOC statute requires a court to “consider ordering an individual 

convicted of an offense under this section to undergo counseling,” but does 

not authorize the imposition of any other conditions. See 18 Pa.C.S. § 

4304(c).

17 Even if the trial court’s condition was advisory, we also find the language of 

the condition vague. In particular, the phrase “frequenting places” did not 

sufficiently define the conduct the court would have found offensive. The 

phrase “places where children . . . are known to congregate” would also not 

have sufficiently apprised Appellant of the areas from which he was precluded. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2019