J-S51021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRY MICHELLE MULLER, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 203 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-0000567-2016

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

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

Appellant Terry Michelle Muller appeals from the judgment of sentence 

imposed after a jury found her guilty of unlawful restraint, false imprisonment, 

endangering the welfare of children, simple assault, and harassment.1 

Appellant claims that the trial court erred when overruling her objection to the 

Commonwealth’s late disclosure of text messages and videos recovered from 

her cellphone. We affirm. 

Because the parties are familiar with the facts giving rise to Appellant’s 

convictions, we do not restate them here. It suffices to note that an 

investigation began when Appellant’s adopted daughter (Complainant) ran 

away from home on January 20, 2015. Complainant, who was thirteen years 

____________________________________________

1 18 Pa.C.S. §§ 2902(c)(1), 2903(c), 4304(a)(1), 2701(a)(1), 2701(a)(3), 

2709(a)(1), and 2709(a)(3), respectively. 
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old at that time, was found the following morning and reported that Appellant 

and her husband (Codefendant) mistreated her.2 

On August 2, 2016, Appellant was charged with offenses related to her 

mistreatment of Complainant, and on August 5, 2016, was taken into custody. 

Appellant remained in custody until November 2017, when she and 

Codefendant proceeded to a joint jury trial. 

We summarize the trial record relevant to this appeal. At the end of 

testimony on the second day of trial, Appellant’s counsel objected to the 

Commonwealth calling a witness to testify about an extraction of data from 

Appellant’s phone. N.T., 11/16/17, at 118. Appellant’s counsel noted that an 

investigator had downloaded the entire contents of Appellant’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 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 Appellant’s phone 

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

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

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2 Codefendant’s appeal is considered in a companion decision at 558 EDA 

2018, J-S51022-18. A more complete summary of the trial evidence is set 

forth in that decision. 
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Appellant’s phone to Codefendant on February 10, 2016.3 The Commonwealth 

asserted that it was entitled to admit the entire contents of Appellant’s phone 

because the Appellant and Codefendant were in actual possession of 

Appellant’s phone. 

Appellant’s counsel responded that Appellant and Codefendant lost 

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

criminal charges against her were not filed until August of 2016. Appellant’s 

counsel emphasized that the defense requested discovery, and that in 

response, the Commonwealth provided them with two text messages found 

on Appellant’s phone. Appellant’s counsel asserted that the Commonwealth’s 

failure to provide information about the remaining contents of Appellant’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 Appellant had equal access to 

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

Appellant’s phone or identify all of the materials it intended to use at trial.4 

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

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

Appellant’s phone. The contents of Appellant’s phone and the accompanying 

report were placed onto a flash drive. See N.T., 11/17/17, at 18-20. The 

flash drive was included in the record transmitted to this Court.

4 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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Second, the Commonwealth suggested that Appellant 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 Appellant’s assertions that Appellant lost her phone, noting, in 

part, that Appellant’s counsel used photographs from Appellant’s phone during 

cross-examination of the Commonwealth’s witnesses.5

The trial court overruled Appellant’s objections, and the Commonwealth

presented testimony regarding the entire contents of Appellant’s phone and 

an extraction report. The Commonwealth moved into evidence the flash drive 

containing a copy of the entire contents of Appellant’s phone as Exhibit 21. 

Additionally, the Commonwealth played nine videos recovered from 

Appellant’s phone during its case-in-chief and used some of the videos during 

its closing argument.

6

 

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

involving Complainant. 

6 Our review reveals that the videos documented Appellant verbally 

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

eating ramen noodles with her fingers while Appellant 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 

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.

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.
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Appellant and Codefendant testified in their own defense. They denied 

abusing, mistreating, or depriving Complainant of any necessities or comforts. 

They admitted placing restrictions on Complainant, but asserted that those 

restrictions were necessary in light of Complainant’s mental health and 

behavioral issues.7 Appellant’s biological children also testified for the 

defense. 

On November 20, 2017, the jury found Appellant guilty of all charges. 

On December 14, 2017, the trial court sentenced Appellant to an aggregate 

term of 68 to 156 months’ imprisonment. 

Appellant timely filed a notice of appeal and complied with the trial 

court’s order to submit a Pa.R.A.P. 1925(b) statement. The trial court filed a 

Rule 1925(a) opinion addressing its decision to admit the text messages and 

videos as follows:

At trial, Appellant objected, essentially in the form of a motion in 

limine, to the Commonwealth’s introduction of certain specific text 

messages and of portions of videos, featuring Appellant and 

[Complainant], obtained from . . . Appellant’s cell phone. The cell 

phone was seized pursuant to a search warrant executed by the 

state police. Detective Christian Robinson testified that he was 

contacted by Corporal Smith to run a forensic extraction on 

Appellant’s cell phone. He also testified as to how the data was 

obtained from Appellant'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 

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7 Appellant claimed that a therapist suggested that she take videos to show 

Complainant’s defiant and aggressive demeanor, because Complainant did not 

display those traits during therapy sessions. See N.T., 11/20/17, at 21. 

Appellant stated that she showed the videos to the therapist. Id.
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have no effect on or alter the contents of the 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 the cell phone. He testified that after he had completed the 

forensic extraction, he returned the 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. The cell phone 

was returned to [Codefendant] on February 10, 2016.

Appellant argues on appeal that the Commonwealth should have 

been precluded from introducing the entire contents of the cell 

phone into evidence at trial because it did not provide the data to 

Appellant during discovery. At trial, the Commonwealth argued 

that . . . Appellant was and is still actually in possession of the 

cell phone and therefore, its contents were admissible. Appellant 

argued that she has not possessed that cell phone since her arrest 

on August 5, 2016. Appellant has been incarcerated since that 

time, and her home has since been sold at tax sale. Appellant 

further argued that, since criminal charges were not filed until 

August 5, 2016, she was not on notice of pending charges or the 

obligation to preserve any relevant information.

In Brady v. Maryland, the United States Supreme Court held 

that “the suppression by the prosecution of evidence favorable to 

an accused upon request violates due process where the evidence 

is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.” 373 U.S. 83, 87 

(1963). There are three components Brady violation: 1) the 

evidence at issue must be favorable to the accused either because 

it is exculpatory or it is impeaching, 2) the evidence must have 

been suppressed by the State, either willfully or inadvertently, and 

3) prejudice must have ensued. 

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

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 (footnote omitted)]. . . . 
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The thumb drive contained the entire contents of Appellant’s cell 

phone; therefore, when the phone was returned to [Codefendant]

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. It was 

known to Appellant that the Commonwealth had the entire 

contents of Appellant[’s] cell phone well before trial commenced. 

The cell phone was in Appellant[’s] possession from February 10, 

2016 until August 5, 2016. 

During trial, the Commonwealth noted that discovery was 

provided to Appellant on January 24, 2017. Appellant did not file 

a motion to compel or specifically request that the Commonwealth 

disclose the extraction report and/or the entire contents of the 

thumb drive. Furthermore, based on Detective [Christian]

Robinson’s testimony as to the extraction process, the contents of 

the cell phone were not altered in any way before it was returned 

to [Codefendant]. [Codefendant] himself picked up the cell phone 

from the state police, and 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., 3/13/18, at 3-5.

Appellant raises the following issues on appeal:

[1]. The trial court abused its discretion by allowing into evidence 

the contents of a flash drive holding the entire contents of the 

Appellant’s cell phone, consisting of thousands of text messages,

photographs, and video, on the Commonwealth’s assertion that 

the Appellant had access to the contents of the cell phone, over 

the Appellant’s objection, without conducting a fact-finding 

hearing to determine the truth of the Commonwealth’s assertion. 

[2]. The failure of the trial court to determine the facts as to 

whether the Appellant did have access to her cell phone after the 

commencement of this prosecution before ruling on Appellant’s 

objection to the introduction of undisclosed evidence was an abuse 

of discretion as the trial court had no factual basis on which to 

make its ruling.
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Appellant’s Brief at 10. Because Appellant’s issues are closely related, we 

address them together. 

Appellant argues that under Pa.R.Crim.P. 573(B)(1), the 

Commonwealth had a mandatory obligation to disclose the entire contents of 

Appellant’s phone once Appellant filed a general request for discovery. Id. at 

17-18. According to Appellant, the videos were material. Appellant notes that 

the Commonwealth, during trial and closing argument, “selected and played 

for the jury nine videos . . . carefully selected from the many” contained on 

the phone. Id. at 17. Appellant claims that because the Commonwealth 

disclosed two text messages in response to her request for discovery, the 

Commonwealth implied that the remaining data on Appellant’s phone was not 

material. Id. at 17. 

Appellant also asserts that the trial court erred in accepting the 

Commonwealth’s arguments in support of its proffer. First, Appellant 

contends there were insufficient facts for the trial court to determine that she 

had equal access to the contents of the phone. Id. at 18. Appellant 

emphasizes that she lost the phone. Second, Appellant disputes the 

Commonwealth’s suggestion that Appellant’s counsel should have requested 

copies of the information recovered from the phone. Id. at 19. Third, 

Appellant argues that the Commonwealth misled the trial court into believing 

she still had the phone. Id. at 20-21. 

As to prejudice, Appellant notes that “[t]he videos were more in the 

nature of demeanor evidence than substantive evidence, in that they showed 
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[her] in a poor light, angry and raising her voice at [Complainant], rather than 

establishing or corroborating any of the elements of the crimes charged.” Id.

at 21. Appellant contends that the videos were a significant part of trial 

because she elected to testify and her credibility was at issue. Id. Appellant 

adds that the late disclosure of the videos prevented her from developing a 

defense and presenting evidence in response to the videos.8 Id. at 22. 

In sum, Appellant contends that the Commonwealth acted in bad faith 

when it failed to disclose the entire contents of Appellant’s phone before trial. 

Appellant, therefore, claims that the trial court should have excluded the 

contents of her phone as a sanction for the Commonwealth’s discovery 

violation. Id. at 20. 

“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), 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).

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8 Appellant does not raise any arguments that the presentation of the text 

messages resulted in prejudice. 
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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[.]

* * *

(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 
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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 

573 is broader to the extent it requires disclosure of inculpatory information. 

See Sullivan, 820 A.2d at 803-04. 

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 
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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 

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.
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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 her phone, and that the 

Commonwealth recovered evidence from her phone. Additionally, the record 

supports the trial court’s findings that Appellant’s phone was returned to 

Codefendant before criminal charges were filed, and that Appellant was aware 

that her 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 

Lantern report and the entire contents of Appellant’s phone. In response to 

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

text messages that it extracted from Appellant’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 Appellant’s request 

for pretrial discovery, or before seeking admission of the contents of 

Appellant’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., 
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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 

pretrial 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 

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’s counsel with a courtesy copy of the flash drive when 
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it moved the contents of Appellant’s phone into evidence. Third, unlike 

Maldonodo, the Commonwealth initially indicated that that it intended to use 

two text messages at trial, but then moved the entire contents of Appellant’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’s 

claims of surprise and prejudice do not merit relief. 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 did not request a 

continuance to review the additional evidence, and she explained the videos

during her own testimony. Cf. Smith, 955 A.2d at 395. Lastly, although 

Appellant suggests that that she could have more effectively rebutted the 

videos if the Commonwealth disclosed the evidence in a more timely fashion,

Appellant does not establish that her trial preparation or strategy would have 

been different had the information been disclosed. Under these 

circumstances, we conclude Appellant has not established that that the

admission of the entire contents of her phone constituted reversible error 

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

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2019