OPINION BY GANTMAN, P.J.:
Appellant, the Commonwealth of Pennsylvania, appeals from the orders entered in the Philadelphia County Court of Common Pleas, which precluded the testimony of the victims at trial because the Commonwealth refused to provide written transcripts of the victims' video interviews. We reverse and remand for further proceedings.
The relevant facts and procedural history of these consolidated appeals are as follows. Appellee Robinson was charged with involuntary deviate sexual intercourse ("IDSI") — forcible compulsion, three counts of unlawful contact with a minor, five counts of endangering the welfare of a child ("EWOC"), five counts of corruption of minors, rape by forcible compulsion, IDSI — complainant less than sixteen years of age, three counts of indecent assault — complainant less than thirteen years of age, four counts of simple assault, four counts of recklessly endangering another
In conjunction with the investigation of Appellees' offenses, the Philadelphia Children's Alliance ("PCA") conducted video forensic interviews of all the victims. During discovery, the Commonwealth gave Appellees copies of all the victims' PCA video interviews. Thereafter, Appellees filed motions to compel verbatim transcripts of each victim's video interview. In the cases of Appellees Green and Baker, Appellees requested that the Commonwealth prepare the transcripts, which the court granted in both cases. In Appellee Robinson's case, however, Appellee initially requested that PCA prepare the transcripts. Following a hearing, the court in Appellee Robinson's case ordered PCA to prepare the transcripts. Nevertheless, PCA filed a motion for reconsideration in which PCA argued the court lacked authority to order PCA to transcribe the victims' interviews and the cost of transcription would be prohibitive, as PCA is a non-profit organization. After conducting a hearing on PCA's motion in Appellee Robinson's case, the court rescinded its previous decision and ordered the Commonwealth to prepare the transcripts, as the Commonwealth planned to call the victims to testify at trial.
In all cases, the Commonwealth declined to transcribe the victims' interviews. In response, the court precluded the Commonwealth from calling the victims to testify at Appellees' respective trials. The Commonwealth filed timely appeals, which certified that the court's orders terminated or substantially handicapped the prosecution against Appellees.
The Commonwealth raises the following issue for our review:
(Commonwealth's Brief at 3).
The Commonwealth argues the court lacked authority to order the Commonwealth to prepare written transcripts of the victims' PCA video interviews. The Commonwealth claims it fulfilled its discovery obligation when it gave Appellees DVD copies of the victims' interviews. The Commonwealth alleges the court's reliance
The Commonwealth also argues the court lacked authority to order the Commonwealth to assume the financial burden of creating verbatim written transcripts. Furthermore, the Commonwealth asserts Appellees failed to establish they would suffer any prejudice or be entitled to relief in the form of preclusion of the victims' testimony. The Commonwealth maintains its refusal to prepare transcripts gave the court no legitimate basis to penalize the Commonwealth and preclude the testimony of the victims at trial, thus terminating the Commonwealth's cases against Appellees. The Commonwealth concludes this Court should reverse the orders suppressing the victims' testimony and remand for trials in Appellees' respective cases.
In response, Appellee Robinson argues Rules 403 and 611 of the Pennsylvania Rules of Evidence, as well as 42 Pa.C.S.A. § 323, permit the court to order the Commonwealth to prepare evidence in a form that can be easily used at trial. Appellee Robinson also claims Pa.R.E. 613(a) entitles him to introduce extrinsic evidence of any prior inconsistent statements of the alleged victims to impeach their credibility. Appellee Robinson alleges the use of video interviews for impeachment purposes is unreasonable because locating specific portions of the videos will cause needless delay, potentially confuse the jury, and unduly frustrate cross-examination. Appellee Robinson asserts he should not bear the responsibility for the cost of transcription because he is indigent and represented by court-appointed counsel. Appellee Robinson also states the court is not financially responsible for the Commonwealth's preparation of evidence. Appellee Robinson argues the court's order was reasonable because it ensures Appellee Robinson will receive a fair trial and protects his due process rights to confront his accusers. Appellee Robinson claims he would not have a full and fair opportunity to cross-examine and potentially impeach the alleged victims if he did not have readily available written materials which accurately reflect the alleged victims' prior statements. Appellee Robinson contends the Commonwealth's actions prejudice his due process rights of effective cross-examination. Appellee Robinson alleges the court possesses an inherent power to impose sanctions on the Commonwealth for failing to comply with the court's directive. Appellee Robinson further maintains the Commonwealth's case against him is not terminated, as the Commonwealth is free to prove its case by other means. Appellee Robinson concludes we should affirm the trial court's order.
"In criminal cases, sanctions may be imposed upon individuals, including counsel for either side ... [to] vindicate the authority of the court." Commonwealth v. Shaffer, 551 Pa. 622, 627, 712 A.2d 749, 752 (1998) (quoting Commonwealth v. Carson, 510 Pa. 568, 571-72, 510 A.2d 1233, 1235 (1986)). "[T]he failure must involve a failure of justice or prejudice to a defendant to justify the discharge of a criminal action. When such interests are not involved, the offending party may be otherwise sanctioned without defeating the public interest." Id.
Shaffer, supra (citation omitted). Nonetheless,
Id. at 628, 712 A.2d at 752.
"We will reverse a trial court's determination only when there has been a plain abuse of discretion." Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super.2002).
Shaffer, supra at 626, 712 A.2d at 751 (citation omitted).
Our Supreme Court "has limited the prosecution's disclosure duty such that it does not provide a general right of discovery to defendants." Commonwealth v. Cam Ly, 602 Pa. 268, 293, 980 A.2d 61, 75 (2009). "Under Brady, the prosecution's failure to divulge exculpatory evidence is a violation of a defendant's Fourteenth Amendment due process rights." Id. "`[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). "[T]o establish a Brady violation, a defendant must demonstrate that: (1) the evidence was suppressed by the Commonwealth, either willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant." Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.Super.2012) (citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 308 (2011)). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial does not establish materiality in the constitutional sense." Id. (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1019 (2003)) (citation omitted).
Nevertheless, "[t]he withheld evidence must have been in the exclusive control of the prosecution at the time of trial." Haskins, supra. "Brady is not violated when the appellant knew or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from other sources." Commonwealth v. Roney, 622 Pa. 1, 23, 79 A.3d 595, 608 (2013) (citing Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873, 902-03 (2011)) (citation omitted) (emphasis added).
Instantly, the Commonwealth provided Appellees during discovery with DVD copies of all the victims' PCA interviews. Despite this disclosure, Appellees filed motions to compel as well verbatim written transcripts of all video interviews, alleging the transcripts were necessary for effective cross-examination and impeachment of the victims because playing the video interviews during cross-examination would be inefficient and cause unnecessary delay. The court granted the motions and ordered the Commonwealth to transcribe the interviews. When the Commonwealth ultimately demurred, the court precluded the Commonwealth from calling the victims to testify at Appellees' respective trials. We think the court's action was in error.
The Commonwealth has no duty to provide evidence in a form that the defendant demands for the convenience of the defense. Appellees had no general right of discovery. See Cam Ly, supra. Once the Commonwealth disclosed the victims' video DVD interviews, the evidence was no longer in the exclusive control of the Commonwealth. See Haskins, supra. Thus, the evidence was equally available to Appellees in a source other than a written transcript. See Roney, supra. Moreover, the general rules and statutes the court relied on did not grant the court inherent rule making
Orders reversed; cases remanded for trials. Jurisdiction is relinquished.