PA Superior Court: No Discovery Violation Where Police Failed to Turn Over Videos to Prosecutors Until Days Before Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lloyd, 2026 PA Super 115 (June 8, 2026), holding that the Commonwealth did not commit a discovery violation where the arresting officer failed to provide forty videos to the prosecution until days before trial and the prosecution promptly notified the defense once it received them. The Court also approved the trial court’s decision to respond to the late disclosure by granting a continuance rather than excluding the videos. The precedential opinion confirms that Rule 573 of the Pennsylvania Rules of Criminal Procedure reaches only evidence within the possession and control of the prosecution. Evidence sitting in a police file may not trigger the rule’s remedies, no matter how long the police have had it or how early the defense asked for it.

Commonwealth v. Lloyd

In November 2023, police charged the defendant with arson and related offenses for allegedly setting fire to the porch of her relatives’ home in Armstrong County. After the case was held over for trial at the preliminary hearing, the defendant filed a discovery request seeking, among other things, any videos in the possession of law enforcement.

The case moved slowly. In January 2024, the trial court granted a defense motion for a competency examination, and the court later ordered treatment to restore the defendant’s competency to stand trial. The court found her competent in October 2024, granted her request for a non-jury trial in November 2024, and scheduled trial for January 29, 2025.

On January 24, 2025, five days before trial, the parties filed dueling motions. The Commonwealth moved for a continuance, alleging that although it had previously requested discovery materials from the arresting officer, it did not receive a disc of videos from him until that same week. The prosecution first told defense counsel about the disc on January 22, 2025, and advised the next day that it contained forty videos, each running about half an hour. The defendant responded with a motion in limine under Rule 573 asking the court to exclude the videos. Her counsel filed the motion before even obtaining the disc and without any opportunity to review roughly twenty hours of footage or to consult with the defendant about it.

The defendant also opposed any continuance. She noted that the Commonwealth had listed the case for trial four times in 2024 without ever mentioning outstanding discovery, and she attributed the late production to the “bad conduct of the arresting officer.” She argued that a continuance was “not feasible” because she remained in custody and her competency might deteriorate while she waited still longer for trial. In her view, the Commonwealth had more than a year to obtain and review the videos, and its continuance request was a last-minute reaction to her motion to exclude them.

The trial court summarily denied the motion in limine, granted the continuance, and rescheduled the non-jury trial for April 1, 2025. At trial, the Commonwealth introduced the videos without further objection from the defense. The footage included gas station security video of the defendant pumping gasoline into a container and carrying it away on foot, along with residential videos showing her walking toward the fire scene with the container and later walking away and discarding the container in a dumpster. The trial court found the defendant guilty and later sentenced her to three to seven years of incarceration. After the court denied her post-sentence motion, she appealed, arguing that the videos should have been excluded and the continuance denied.

Rule 573 and the Remedies for Late Disclosure

Rule 573(B)(1)(f) requires the Commonwealth, on request, to disclose tangible objects, including documents and photographs, that are material to the case. The Commonwealth also has a continuing duty under Rule 573(D) to disclose additional evidence and to promptly notify the defendant when new material surfaces. If a court finds a discovery violation, Rule 573(E) gives it broad discretion to choose a remedy, which can include excluding the evidence.

The case law places an important limit on the rule, however. The Commonwealth need not turn over evidence that is not within its possession or control. As the Superior Court explained in Commonwealth v. Long, 753 A.2d 272, 278 (Pa. Super. 2000), “[o]ur cases uniformly hold that the prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, as when the evidence is in police custody.”

Even when a violation occurs, exclusion is the exception. The Superior 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). Absent any violation, Rule 106(A) permits the trial court to grant a continuance “in the interests of justice.”

One caveat is worth noting. Rule 573 does not alter the Commonwealth’s obligations under Brady v. Maryland, 373 U.S. 83 (1963), which extend to favorable evidence in the possession of the police even when the prosecutor is unaware of it. Lloyd did not argue that Brady was at issue in her appeal.

The Superior Court’s Decision

The Superior Court affirmed. Reviewing the evidentiary ruling for an abuse of discretion, the Court concluded that Lloyd never established a discovery violation in the first place. The disclosure duty imposed by Rule 573 extends to evidence in the Commonwealth’s possession and control, not evidence that sits solely in police custody. Lloyd did not dispute that the videos remained with the police until the prosecution received them shortly before the scheduled trial date, or that the prosecution promptly notified her counsel once it had them. She also pointed to no facts suggesting the prosecution knew of or had access to the videos any earlier.

The Court acknowledged Lloyd’s frustration with the Commonwealth’s repeated trial listings that made no mention of outstanding discovery, but it held that this was not the type of delay Rule 573 was intended to address. The Court reiterated that “Rule 573 . . . does not, itself, impose a duty of due diligence on the part of the Commonwealth.” The rule requires prompt notification of additional evidence, and the prosecution provided it.

Because there was no violation, the remedies provision of Rule 573(E) never came into play, and the trial court properly denied the motion in limine. The Superior Court likewise found no abuse of discretion in the continuance, endorsing the trial court’s explanation:

The interests of justice required that both sides have a reasonable opportunity to review the new evidence, whether inculpatory, exculpatory, or neither. . . . [S]imply postponing the trial was the proper way to protect [Lloyd]’s right to a fair trial. Precluding evidence that had not been reviewed by either the Commonwealth or [Lloyd] was not the solution.

The panel added that even if the Commonwealth had violated Rule 573, the trial court still would not have abused its discretion by ordering a continuance as the remedy for the late disclosure.

The Takeaway

The decision draws a hard line between the police and the prosecution for discovery purposes, and that line seems inconsistent with the Commonwealth’s Brady obligations. A defendant can request videos at the outset of the case, the police can hold them for more than a year, and the defense still has no remedy under Rule 573 so long as the prosecutor discloses the evidence quickly once it finally arrives. For a defendant in custody, the consequences are real. The defendant waited in jail for an additional two months while the parties reviewed footage that, in her view, the Commonwealth should have obtained long before, and she did so while her competency remained a serious concern.

The opinion also shows where the fight has to happen in these cases. The outcome might be different if the defense can establish that the prosecution itself knew of or had access to the evidence earlier, so counsel should press for a record of when the district attorney’s office learned of the material rather than focusing only on when the police collected it. The defendant did not develop that record, and the Superior Court noted that she made no attempt to do so even at the post-sentence stage. Claims involving favorable evidence stand on different footing as well. Brady reaches favorable evidence in police hands regardless of what the prosecutor knows, so late-surfacing material that actually helps the defense presents a much stronger claim. The defendant may have also had a viable Rule 600 speedy trial motion due to the delays as the Commonwealth must exercise due diligence during the life of the case and may not juts seek continuances indefinitely.

Lloyd also confirms how difficult it may be to win exclusion of evidence as a discovery sanction in Pennsylvania. But the analysis also took place based on what the trial court did, and appellate courts are often deferential to the trial courts on review in these types of cases. Courts typically treat a continuance as the standard cure when the only prejudice is surprise, even on the eve of trial and even when the defendant is in custody. A defendant seeking exclusion generally needs to show something more, such as evidence that the prosecution withheld material it actually possessed or prejudice that additional time cannot fix in order to win an appeal. In practice, however, many trial courts may exclude the evidence or dismiss a case, or the continuance may trigger a speedy trial problem for the Commonwealth.

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