J-A07029-25
2025 PA Super 121
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JEFFREY DODD : No. 701 MDA 2024
Appeal from the Order Entered April 22, 2024
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004090-2020
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
CONCURRING AND DISSENTING OPINION BY BOWES, J.: FILED: JUNE 11,
2025
Approximately four years after the Commonwealth charged Appellee
with strangulation and simple assault, roughly thirty-eight months since
defense counsel requested discovery of all documents and photographs, and
following two rounds of extensive plea negotiations in 2022 and 2024,
respectively, the Commonwealth relinquished to Appellee one week before
trial several pieces of evidence that it just received from the complainant,
including two nearly four-year-old photographs depicting the accuser’s face
with bloodshot eyes.
Following a hearing on Appellee’s ensuing motion in limine, the trial
court precluded the Commonwealth from presenting the photographs and
other evidence. The court reasoned
J-A07029-25
[Appellant] has a right to prepare a defense. When you wait four
years to produce photographs, which I recognize you may have
just received, but you have prior attorneys in your office that have
an ongoing obligation to investigate and present evidence. This
opens the floodgate to a whole host of issues. The Commonwealth
can very easily hide behind the fact that they didn't know, and
they didn't do a proper investigation. The Commonwealth has a
due diligence burden. And four years is a long time, especially
when this has been placed for trial multiple times before me.
N.T., 4/17/24, at 33-34. After hearing additional argument on this issue, the
court continued,
There is no question that the burden is on the
Commonwealth to engage in due diligence when producing
information for trial. I . . . find that [Appellee] is going to be
prejudiced [by] the photographs and text messages that [the
accuser] had in her possession for the last four years because they
weren’t turned over timely. I think the [Appellee] is prejudiced
by that.
We can't go through this [discovery] process and have it be
fair if we're not going to ask the relevant questions as part of the
investigation and due diligence. The statements by the
[investigating ]officer that he didn't recall any conversations with
[the accuser] and statements, frankly, made by the District
Attorney that she chose not to engage with the [accuser] until
immediately prior to trial, don't serve the due diligence. . . burden
that's incumbent upon the Commonwealth. We can't just bury
our heads in the sand and expect [the information] to pop up at
the end of the day.
Id. at 63-64.
The learned Majority rejects the trial court’s consideration of the
Commonwealth’s purported lack of diligence in investigating the case because
diligence is not explicitly imposed by Pa.R.Crim.P. 537(B), which guides
discovery in criminal litigation. Hence, it finds that the Commonwealth
-2-
J-A07029-25
complied with the rule simply by turning over the evidence immediately after
obtaining it from the accuser. Majority Opinion at 8-9. I believe that the
Majority’s rationale disregards the actual harm Appellee suffered in this case
due to the Commonwealth’s delay interviewing the accuser and procuring her
eleventh-hour disclosure of material evidence. Thus, I respectfully disagree
with its decision to vacate the trial court order excluding the photographs from
evidence. 1
The Majority accurately summarized the relevant facts, procedural
history, and standard of review. Accordingly, I do not revisit those items here.
However, concerning the trial court’s invocation of fair dealing in ruling on the
motion in limine, I add only that one purpose of a motion in limine is “to
provide the trial court with a pre-trial opportunity to weigh carefully and
consider potentially prejudicial and harmful evidence.” Commonwealth v.
Padilla, 923 A.2d 1189, 1193-94 (Pa. Super. 2007). Phrased differently, “a
____________________________________________
1 As the Majority accurately highlights, the Commonwealth also provided
Appellee with three pages of text messages between Appellee and his accuser
shortly after the alleged incident. Since Appellee participated in the exchange
of text messages, I agree with my learned colleague’s conclusion that he was
not surprised by their existence regardless of any difficulty he encountered in
retrieving them independently. Accordingly, I join the Majority’s decision to
vacate the portion of the order concerning the exclusion of the text messages
between Appellee and the victim. See Majority Opinion at 9, n.3 (“We note,
however, that the Commonwealth was arguably at the bigger disadvantage
because Appellee sent the text messages and, as such, logically knew of their
existence. For this reason, our case law dictates that Appellee cannot use the
discovery rules against the Commonwealth for its failure to produce the
evidence sooner.”) (cleaned up) (internal citations and quotations omitted).
-3-
J-A07029-25
motion in limine precludes evidence that was constitutionally obtained but
which is prejudicial to the moving party.” Commonwealth v. Reese, 31 A.3d
708, 715 (Pa.Super. 2011) (citation omitted) (differentiating between motion
to suppress and motion in limine).
From my perspective, the trial court neither abused its discretion in
imparting a good faith duty of due diligence upon the Commonwealth in
resolving the motion in limine, nor by considering the resulting prejudice to
Appellee. By sanctioning the prosecution’s practice of declining to interview
witness until the eve of trial, the Majority permits the Commonwealth to
perform an end-run around the strict requirements of the disclosure rule.
Whether the Commonwealth sits on evidence for four years or simply waits
four years to uncover it, the effect on the defendant is identical. In this regard,
I do not believe it was error for the court to consider the Commonwealth’s
lack of diligence in interviewing the complainant.
As Appellee notes, the Commonwealth charged him with strangulation
and simple assault. While strangulation does not require evidence of physical
injury, in order to convict Appellee of simple assault pursuant to 18 Pa.C.S.
§ 2701(a)(1), the Commonwealth is required to prove beyond a reasonable
doubt that he either caused or attempted to cause bodily injury. Consistent
with the Majority’s recitation of fact, both the investigating police officer and
the complainant previously testified during the preliminary hearing that no
such injuries occurred. See Majority Opinion at 1 (quoting Trial Court Opinion
-4-
J-A07029-25
at *1 (“the investigating officer testified that he observed no injuries to [the
accuser, who] also testified at the preliminary hearing and she did not
reference any injuries”)). Appellee requested discovery of any photographs
in this case and the Commonwealth provided the physical evidence it
possessed at that juncture. None of that evidence apparently supported the
simple assault charge. Thus, throughout the extended plea negotiations,
Appellee was fully aware that the Commonwealth persisted in prosecuting the
simple assault despite lacking any evidence of injury beyond the accuser’s
anticipated testimony. That knowledge undoubtedly affected his plea
negotiations.
Then, following jury selection and with less than one week before trial,
the Commonwealth discovered evidence of injury. That last-minute
revelation, which was due entirely to the prosecution’s practice of deferring
its investigation, not only surprised Appellee on the cusp of trial, but it also
undermined his prior plea negotiations. Indeed, the prosecutor conceded, “In
light of the new evidence, it does strengthen my case.” N.T., 4/17/24, at 39.
Conversely, Appellee’s counsel indicated during argument, “An offer
had been made. And had we had th[is] evidence, my client would have
accepted the offer. It impacted his knowing and intelligent decision making
at the time the offer was rejected.” Id. at 20. The record does not indicate
the precise terms of the prior negotiations beyond the Commonwealth’s offer
to reduce the grading of strangulation from a second-degree felony to a
-5-
J-A07029-25
misdemeanor. However, bolstered by the recent evidence of physical injury,
the Commonwealth’s revised offer was limited to an open plea to both of the
instant offenses, in exchange for a recommendation that Appellee’s sentence
would be imposed consecutive to other unrelated offenses that he would also
be required to “plea as charged.” Id. at 39 The failure to garner the
information timely, at least when the case was listed for trial in 2022, impacted
Appellee’s decision to reject the prior offers; now fortified with the new
evidence, the Commonwealth’s only offer was an open plea as part of a global
agreement across multiple docket numbers unrelated to this case. Id. This
unfair outcome is the harm that the trial court sought to remedy by granting
the motion in limine.
While the Majority proffers a continuance as the appropriate remedy in
this case, what benefit would a continuance provide Appellee at his juncture
where he has already rejected the Commonwealth’s plea offer based on what
he believed the evidence to be, only to be confronted unexpectedly with the
new evidence on the eve of trial? The harm to be cured is not that the late
disclosure impacted his ability to prepare for trial. Rather, the new evidence
undermined Appellee’s position throughout the extended plea negotiations.
That is the crux of the trial court’s analysis, which I find convincing.
Overall, I believe that the Commonwealth’s nominal compliance with
Rule 573 was prejudicial to Appellee, specifically, and the Majority’s
endorsement of this practice encourages the Commonwealth to conduct its
-6-
J-A07029-25
pretrial investigations as late as possible, notwithstanding any harm that
might befall a criminal defendant.
Hence, I respectfully dissent from the Majority’s decision to vacate the
portion of the trial court order excluding the two photographs.
-7-
