# Com. of PA v. J.M. DeMaske

> Commonwealth Court of Pennsylvania · November 16, 2022

URL: https://www.frixlaw.com/law-library/cases/8484146

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** November 16, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Fizzano Cannon, J.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8484146

## How later opinions describe it (automated extraction)

- noting that the Commonwealth retains general and widely recognized discretion regarding the prosecution of criminal matters

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :
:
v. :
:
John M. DeMaske, : No. 770 C.D. 2019
Appellant : Submitted: August 19, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 16, 2022

John M. DeMaske (Appellant) appeals from the judgment of sentence
entered in the Court of Common Pleas of Greene County (trial court) following his
jury trial convictions for six (6) counts of unlawful killing or taking of big game, in
violation of the Game and Wildlife Code,1 34 Pa.C.S. § 2321(a)(2). This Court
previously remanded the matter to the trial court to allow Appellant to file, nunc pro
tunc, a concise statement of errors complained of on appeal pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b) and for the trial court to thereafter issue an
opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). See Com.
v. DeMaske (Pa. Cmwlth., No. 770 C.D. 2019, filed Jan. 4, 2022) (DeMaske I). Both
Appellant and the trial court complied with these directives on remand, and the
1
34 Pa.C.S. §§ 101-2965.
matter now returns to this Court for determination. After careful review, we affirm
the judgment of sentence.
I. Background and Procedural Posture
In our previous decision, this Court outlined the salient facts and
relevant procedural posture underlying this appeal as follows. See DeMaske I, slip
op. at 2-5.

On November 15, 2015, Appellant presented at the home
of Lonnie Starcher.2 See Notes of Testimony, May 31,
2018 (N.T. 5/31/2018) at 51, 75-76, 186. Appellant had
eight deer antler racks in his truck, which he removed and
placed in a storage shed on the property owned and used
by the DeMaske family.3 See id. at 76.
2
Starcher rents a house on property owned by
Appellant’s father, Marko DeMaske, with whom
Starcher has a good relationship. See Notes of
Testimony, May 31, 2018 (N.T. 5/31/2018), at 65,
75, 77 & 80.
3
Starcher explained that he stores some
Christmas things and a lawn mower in the shed,
but that otherwise the DeMaske family owns the
storage shed and accesses it to store things therein
at their convenience. See N.T. 5/31/2018 at 80.

On November 20, 2015, the Pennsylvania Game
Commission received an anonymous report regarding deer
antlers being stored at Starcher’s residence. See N.T.
5/31/2018 at 50-51. As a result, multiple game wardens
arrived at the residence on the evening of November 20,
2015, and discovered eight racks of antlers in the storage
shed, seven of which appeared fairly fresh with blood and
brain matter still attached.4 See id. at 51-52, 65, 72-73.
The game wardens photographed and seized the antlers.
See id. at 52.

2
4
The eighth antler rack appeared to the game
wardens to be an old rack. See N.T. 5/31/2018 at
52, 69.

On November 21, 2015, multiple game wardens
visited Appellant’s home, where they encountered
Appellant. See N.T. 5/31/2018 at 68, 89, 94-95, 99.
Appellant gave a statement to the wardens regarding the
deer antlers while seated in the passenger’s seat of the
wardens’ vehicle. See id. During the interview, Appellant
admitted to the game wardens that he had delivered the
antlers to the shed at Starcher’s. See N.T. 5/31/2018 at 89-
90. He further admitted that he killed three deer with a
crossbow during the hunting season, although he was only
supposed to kill one. See N.T. 5/31/2018 at 90, 98-99,
178. At trial, Appellant testified that he did not
intentionally kill three deer in violation of the rules. See
N.T. 5/31/2018 at 178. Instead, Appellant explained that
he had shot the first deer and tried to track it, without
success. See N.T. 5/31/2018 at 90-91, 99, 178. Appellant
explained that he thereafter shot and killed a second deer,
then found the carcass of the first deer before shooting and
killing a third deer with the aid of his father, Marko
DeMaske.5 See N.T. 5/31/2018 at 90-91, 99-100, 179.
Appellant also explained that three of the deer antlers in
the shed came from roadkill and another was killed by
Kevin Jenkins, another renter.6 See N.T. 5/31/2018 at 90.
Appellant also voluntarily showed the game wardens
pictures of the deer that were on his phone, which the
wardens confiscated. See N.T. 5/31/2018 at 93, 103. The
game wardens also confiscated Appellant’s two crossbows
during the interview. See N.T. 5/31/2018 at 93-94, 98-99,
110, 177.
5
Game wardens also charged Marko DeMaske
with multiple counts of unlawful killing or taking
of big game, but later dropped those charges. See
N.T. 5/31/2018 at 71, 101.

3
6
This version comes from the game wardens’ –
Officers Steve King, Michael Lubic, and Brandon
Bo[n]in – testimony as to what Appellant told the
authorities. See N.T. 5/31/2018 at 49-73, 88-111
& 138-172. On direct examination, Appellant
provided a slightly different version of how the
seven fresh sets of antlers came to be in the shed:
one was his, one was his father’s, two were the
ones he had injured and that Starcher had
retrieved, two were roadkill, and the final one was
that of the second renter, Kevin Jenkins. See N.T.
5/31/2018 at 183-84.

Regarding licensing, Appellant possessed only one
tag to harvest an antlered deer in Pennsylvania during the
2015 hunting season. See 5/31/2018 at 141, 148.
Appellant did not have a hunting license from West
Virginia or Ohio for 2015, and he did not report any
harvest in 2015 to the Pennsylvania Game Commission.
See 5/31/2018 at 141, 153-55.

Following a two-day trial, a jury convicted
Appellant of seven counts of unlawful killing or taking of
big game.7 On August 1, 2018, the trial court sentenced
Appellant to an aggregate sentence of 5 days to 8 months
of incarceration followed by 60 days of probation, together
with fines and restitution totaling $3,000 and $4,000,
respectively. See Trial Court Sentencing Order dated
August 1, 2018 at 2-5 (pagination supplied).
7
Despite the jury’s conviction on seven counts
of unlawful killing or taking of big game, the
verdict was recorded as six counts because
Appellant had one antlered deer tag for 2015,
although Appellant failed to report any deer
harvest to the Pennsylvania Game Commission in
2015.

Appellant filed a timely Notice of Appeal on August
24, 2018.8 See Notice of Appeal filed Aug. 24, 2018. On

4
August 30, 2018, the trial court directed Appellant to file
a Pennsylvania Rule of Appellate Procedure 1925(b)
concise statement of errors complained of on appeal
within 21 days. See Trial Court Order dated Aug. 30, 2018
(Rule 1925(b) Order). On September 10, 2018, in
response to Appellant’s Motion for Extension to File a
Concise Statement filed the same day, the trial court
extended Appellant’s deadline to file his Rule 1925(b)
statement to October 10, 2018.9 See Trial Court Order
dated Sept. 10, 2018 (Rule 1925(b) Extension Order); see
also Motion for Extension to File a Concise Statement
filed Sept. 10, 2018 (First Extension Request).
8
Appellant originally filed this appeal in the
Superior Court of Pennsylvania. See Notice of
Appeal; Superior Court Docket No. 1221 WDA
2018 at 4. The Superior Court transferred the
matter to this Court on April 29, 2019, pursuant to
Section 762(a)(2)(ii) of the Judicial Code, 42
Pa.C.S. § 762(a)(2)(ii), which confers upon this
Court appellate jurisdiction over criminal
proceedings for violations of regulatory statutes
administered by Commonwealth agencies. See
Dickerson v. Commonwealth, 87 A.2d 379, 381
(Pa. Cmwlth. 1991).
9
In his proposed order for the trial court’s
signature, Appellant requested that the trial court
extend the Rule 1925(b) statement filing deadline
to “within twenty-one (21) days after the transcript
is filed[.]” See Rule 1925(b) Extension Order.
The trial court, however, struck this suggested
temporal language from the order and replaced it
with a handwritten notation indicating the Rule
1925(b) statement was due “30 days from this
date[,]” which made the deadline for filing a Rule
1925(b) Statement October 10, 2018. Id.

On November 1, 2018, after Appellant failed to file
a Rule 1925(b) statement by the October 10, 2018
deadline, the trial court issued an order directing that the
5
record of the matter be transferred to the appellate court
for review without a Rule 1925(b) statement. See Trial
Court Order dated Nov. 1, 2018 (Transmittal Order).
Thereafter, on November 13, 2018, Appellant filed a Rule
1925(b) statement and his “Motion to Permit Late Filing
of Defendant’s Concise Statement of Errors Complained
of On Appeal” with the trial court. See Motion to Permit
Late Filing of Defendant’s Concise Statement of Errors
Complained of On Appeal filed Nov. 13, 2018 (Second
Extension Request); see also Concise Statement of Errors
Complained of On Appeal filed Nov. 13, 2018. In an order
dated November 16, 2018, the trial court acknowledged
these filings only to the extent that it directed the Greene
County Clerk of Courts to forward copies of the filed Rule
1925(b) statement and the November 16, 2018 order to the
appellate court for its consideration. See Trial Court Order
filed Nov. 16, 2018 (Second Transmittal Order).

DeMaske I, slip op. at 2-5.
On appeal, this Court determined that Appellant waived all his issues
on appeal by failing to timely file an ordered Rule 1925(b) statement. See DeMaske
I, slip op. at 9-10. Because this failure represented per se ineffectiveness of counsel,
however, on January 4, 2022, we remanded the matter to the trial court to allow the
nunc pro tunc filing of a Rule 1925(b) statement by Appellant and the preparation
of a Rule 1925(a) opinion by the trial court. See id. Appellant filed his Rule 1925(b)
statement on January 18, 2022, and the trial court accepted the filing and issued a
“Statement Pursuant to Pa. R.A.P. 1925” (Trial Court Opinion) thereafter. The
matter is now ripe for determination on the merits.
II. Issues
Appellant raises the following issues for our review:

1. Did the [trial c]ourt permit Deputy Game Warden Bonin
and Deputy Game Warden King to give expert testimony

6
without these witnesses being qualified as an expert [sic]
or being required to provide expert reports to the defense?

2. Did the [trial c]ourt err in treating each set of deer
antlers which [Appellant] transported to [] Starcher’s
residence as a separate criminal offense?

3. Was [Appellant] unduly prejudiced by the prosecution
e-mailing discovery to defense counsel months after it was
due and days before the trial?

4. Did the [trial c]ourt err in failing to [grant] a Motion to
Dismiss all but three [c]ounts of unlawfully possessing or
killing deer at the conclusion of the Commonwealth’s case
in chief? Did the Commonwealth fail to establish a prima
facie case?

5. Did the [trial c]ourt err in not entering a directed verdict
for [Appellant] at the conclusion of all the evidence as the
Commonwealth proved only that [Appellant] killed three
deer and he had a lawful tag for one deer?

6. Did the Commonwealth’s evidence fail to prove that
[Appellant] knew that all seven sets of deer antlers in his
possession were illegally obtained or killed by other
people?

7. Did the Commonwealth fail to provide notes taken by
Deputy Game Warden Lubic which were transcribed at the
time [Appellant] was being questioned by police?

Appellant’s Br. at 3-4.2

2
We note that, in response to this Court’s August 4, 2022 order regarding supplemental
briefing following remand, Appellant’s counsel informed the Court that Appellant intended to rely
on his previously filed brief and thus would submit no further briefing in this matter. See
Commonwealth Court Order dated Aug. 4, 2022; see also Letter of Neil J. Marcus dated Aug. 9,
2022.

7
III. Discussion
A. The testimony of the Deputy Game Wardens
First, Appellant claims that the trial court erred by letting the game
wardens testify as to their observations about the deer antlers confiscated. See
Appellant’s Br. at 10-11. Appellant alleges that this testimony amounted to
improper expert testimony. See id. He is incorrect.
Initially, we observe that “[t]he admission of evidence is solely within
the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion.” Com. v. Woodard, 129 A.3d 480,
494 (Pa. 2015) (quoting Com. v. Reid, 99 A.3d 470, 493 (Pa. 2014)). Further, a trial
court may accept the opinion of an expert where “the expert’s scientific, technical,
or other specialized knowledge is beyond that possessed by the average layperson;”
or where “the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue.” Pa.R.E.
702. “[E]xpert testimony must be based on more than mere personal belief, and
must be supported by reference to facts, testimony or empirical data.” Nobles v.
Staples, Inc., 150 A.3d 110, 114 (Pa. Super. 2016) (quoting Snizavich v. Rohm &
Haas Co., 83 A.3d 191, 195 (Pa. Super. 2013)) (internal quotation marks omitted).
Otherwise stated, “expert testimony reflects the application of expertise and does not
stray into matters of common knowledge.” Com. v. Manivannan, 186 A.3d 472, 485
(Pa. Super. 2018) (internal quotation marks and brackets omitted).
In the instant matter, Deputy Game Warden King and Deputy Game
Warden Bonin testified simply to their own personal observations regarding the
antler racks seized from the storage shed. See N.T. 5/31/2018 at 52, 69, 72-73.

8
Deputy Game Warden King testified that seven of the antler racks “seemed to be
really fresh, they still had brain matter in them and blood on them.” N.T. 5/31/2018
at 52. He further observed that “[o]ne of them was an old one.” Id. These are not
specialized observations beyond the ken of the average layperson, but instead are
simple personal observations and descriptions of things within the witnesses’ sight.
As such, this is not testimony that requires qualification as an expert. See Nobles.
Further, the same is true of the Deputy Game Wardens’ testimony regarding the
photographs of the deer antlers. See N.T. 5/31/2018 at 53, 58-59, 120, 141-44. We
find no error or abuse of discretion in the trial court allowing this testimony into
evidence.
B. Individual antler racks as separate criminal counts
Second, Appellant argues that the trial court erred by treating each set
of deer antlers transported to and confiscated from Starcher’s residence as a separate
criminal offense. See Appellant’s Br. at 11-12. Appellant is not entitled to relief on
this claim.
The Game and Wildlife Code grades counts of unlawful killing or
taking of big game as follows:

(2)(i) A violation of subsection (a)(1) or (2) where the
species is a single white-tailed deer or a single wild turkey
is a summary offense of the first degree and may result in
forfeiture of the privilege to hunt or take wildlife anywhere
within this Commonwealth for a period of three years. A
second violation of subsection (a)(1) or (2) where the
species is a single white-tailed deer or a single wild turkey
within a seven-year period is a misdemeanor and may
result in forfeiture of the privilege to hunt or take wildlife
anywhere within this Commonwealth for a period of five
years. A third offense within a seven-year period where
the species is a single white-tailed deer or a single wild

9
turkey is a misdemeanor of the first degree and may result
in the forfeiture of the privilege to hunt or take wildlife
anywhere within this Commonwealth for a period of ten
years.

(ii)(A) A second violation of subsection (a)(1) or (2)
during the same criminal episode where the species taken,
injured, killed, possessed or transported is white-tailed
deer or wild turkey is a misdemeanor and may result in
forfeiture of the privilege to hunt or take wildlife anywhere
within this Commonwealth for a period of five years.

(B) A third or fourth violation of subsection (a)(1) or (2)
during the same criminal episode where the species is
white-tailed deer or wild turkey is a misdemeanor of the
first degree and may result in forfeiture of the privilege to
hunt or take wildlife anywhere within this Commonwealth
for a period of ten years.

(C) A fifth or subsequent violation of subsection (a)(1) or
(2) during the same criminal episode where the species is
white-tailed deer or wild turkey is a felony of the third
degree and may result in forfeiture of the privilege to hunt
or take wildlife anywhere within this Commonwealth for
a period of 15 years.

34 Pa.C.S. § 2321(d)(2). Pursuant to this offense grading scheme, the six (6) counts
for which Appellant was found guilty included one summary offense, one ungraded
misdemeanor, two misdemeanors of the first degree, and two felonies of the third
degree. See Trial Court Docket CP-30-CR-0000274-2017 at 4.
The testimony of multiple witnesses in this matter, Appellant included,
revealed that Appellant stored eight sets of antlers – seven fairly fresh sets and one
old set – in the storage shed. Each antler rack – the fresh ones with the brain matter
and blood still on them, at least – represented the killing and/or taking of a separate
deer. It was within the Commonwealth’s purview to treat each as a separate offense
10
under the Game and Wildlife Code and prosecute Appellant for each as an individual
charge, which the Commonwealth accordingly did. See 34 Pa.C.S. § 2321(d)(2); see
also Com. v. Brown, 708 A.2d 81, 84 (Pa. 1998) (noting that the Commonwealth
retains general and widely recognized discretion regarding the prosecution of
criminal matters).
To the extent Appellant criticizes the Commonwealth’s decision to
prosecute him “for seven counts of violating the Big Game law for the short time
deer antlers were in his possession” as “draconian,” this argument affords him no
relief. Appellant’s Br. at 11. The fact that Appellant possessed the antlers only
during the time it took to transport and store them at the storage shed in no way
lessens his possession thereof – the Game and Wildlife Code contains no minimum
temporal requirement for unlawful possession of big game remains before an
individual may be guilty of unlawful killing or taking of such game. See 34 Pa.C.S.
§ 2321(a)(2). Further, Appellant’s rhetorical observation that the authorities did not
charge Starcher with unlawful killing or taking of big game despite the deer antlers
being recovered in Starcher’s possession is likewise immaterial to whether Appellant
himself was properly charged with seven counts of unlawful killing or taking of big
game. See Appellant’s Br. at 11-12; see also Brown. Appellant is not entitled to
relief on his second claim.
C. Pre-trial discovery production
Next, Appellant asserts that the trial court erred in admitting evidence
where the Commonwealth did not respond to Appellant’s discovery requests within
30 days of the service of the motion for discovery. See Appellant’s Br. at 12. In this
cursory argument, Appellant fails to identify with any specificity the discovery at
issue and/or the pertinent evidence admitted at trial. See id. Instead, he merely states

11
that “[t]he prosecution dumped numerous emails and information upon [Appellant]
in the two (2) weeks before the case was called for trial.” Id. Without further
specificity or development of any kind, Appellant concludes “[t]his was unduly
prejudicial to [him],” and therefore “[e]vidence which the prosecution wished to
present should have been barred by the [trial c]ourt.” Id. Because he failed to
meaningfully develop this issue in his brief, Appellant has waived this argument.3
Com. v. Spotz, 18 A.3d 244 (Pa. 2011) (claim unreviewable and waived for lack of
development where appellant did not develop the claim factually or legally and did
not support it with citations, and the court could not discern what error allegedly
occurred).
D. Motion to dismiss
Appellant next claims that the trial court erred by failing to grant a
motion to dismiss on all but three counts of unlawful killing or taking of big game
because the evidence established only that Appellant had killed three deer. See
Appellant’s Br. at 12-13. This claim is effectively a sufficiency of the evidence
claim that entitles Appellant to no relief.
When examining a challenge to the sufficiency of evidence of a
criminal conviction, an appellate Court’s standard of review is as follows:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence

3
Even in the absence of a response within 30 days to a discovery request, we do not agree
with Appellant’s conclusory statement that “[t]he defense had the right to assume the
Commonwealth could not or would not seek to prove that the deer antlers came from deer
harvested in Pennsylvania.” Appellant’s Br. at 12.
12
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [trier]
of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part or none of the evidence.

Com. v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014).
Here, the Commonwealth’s evidence that Appellant possessed seven
deer included photographs and testimony regarding seven “fairly fresh” deer racks
still with blood and brain matter on them that Appellant transported to and placed
inside the storage shed at Starcher’s property. The evidence further illustrated that
Appellant had but one antlered deer tag for the 2015 season and that none of the
other individuals to whom Appellant attributed the deer racks had reported an
antlered deer harvest in 2015. Finally, Appellant admitted taking a photograph
recovered on his phone that depicted seven deer heads in a field. See N.T. 5/31/2018
at 183. This evidence constituted prima facie proof of seven counts of unlawful
killing or taking of big game sufficient to send the charges to the jury and deny any
motion to dismiss or for directed verdict at the conclusion of the Commonwealth’s
case in chief. Accordingly, Appellant is not entitled to relief on his fourth claim.

13
E. Motion for a directed verdict
In his fifth claim, Appellant alleges the trial court erred by failing to
enter a directed verdict in his favor. See Appellant’s Br. at 13-14. A directed verdict
should be granted if “the prosecution’s evidence, and all inferences arising
therefrom, considered in the light most favorable to the prosecution, are insufficient
to prove beyond a reasonable doubt that the accused is guilty of the crimes charged.”
Com. v. Potts, 460 A.2d 1127, 1138 (Pa. Super. 1983). This claim fails for the
reasons articulated above in reference to the motion to dismiss.
F. Sufficiency of the evidence regarding Appellant’s knowledge
that the deer racks were illegally harvested
In his sixth claim, Appellant claims the Commonwealth failed to
adduce evidence sufficient to prove that Appellant knew that the seven racks of deer
antlers were illegally harvested. See Appellant’s Br. at 14-15. As with the previous
two claims, this is a sufficiency of the evidence claim. It likewise fails.
Like all elements of crimes, “intent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct or from the
attendant circumstances.” Com. v. Franklin, 69 A.3d 719, 723 (Pa. Super. 2013).
Further,

[w]e note that credibility determinations are within the
sole province of the jury. A jury is entitled to believe all,
part, or none of the evidence presented [and] can believe
any part of a witness’ testimony that they choose, and may
disregard any portion of the testimony that they
disbelieve. Our court will not award a new trial if there is
evidence supporting the jury’s finding.

Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198, 205 (Pa. Cmwlth. 2009) (internal
citations, quotation marks, and brackets omitted).

14
In this matter, the evidence clearly showed that Appellant had seven
sets of antlers in his possession. As the trial court noted, “[w]hether [Appellant] had
actual knowledge that all seven deer antlers in his possession were illegally obtained
or killed by other people was a question for the jury[.]” Trial Court Opinion at 6-7.
The jury heard Appellant’s testimony that he did not intentionally kill deer in
violation of the rules; that he had been unable to track certain deer he shot that were
later located and that the remaining deer were either killed by another individual or
were roadkill. The jury in its capacity as finder of fact disregarded this testimony
and convicted Appellant as discussed above. As discussed, supra, our review of the
record confirms that the Commonwealth put forth evidence from which a jury could,
and did, attribute to Appellant knowledge of the illegal harvesting of the deer antlers
he possessed. Appellant is accordingly not entitled to relief on this claim. See
Tucker.
G. Deputy Game Warden Lubic’s notes
In his final issue, Appellant alleges he was prejudiced by a discovery
violation because Deputy Game Warden Lubic made reference on direct
examination to notes made during his November 21, 2015 interview with Appellant
that had not been produced in discovery. See Appellant’s Br. at 15-16. Appellant
alleges that had such notes been turned over, his counsel could have more effectively
cross-examined the witness and prepared Appellant for his own direct testimony.
See id. at 17. While not previously produced, the notebook in question was produced
during Deputy Game Warden Lubic’s cross-examination and Lubic explained that it
contained a summary of the events of November 20-21, 2015. See N.T. 5/31/2015
at 96-97. The notebook did not contain notes on Appellant’s statement regarding
where he shot the deer; in fact, the only information regarding the notebook revealed

15
at trial was (a) the notebook’s existence, and (b) the fact that the notebook did not
contain information or notes about what Appellant said during the interview on
November 21, 2015. As such, Appellant cannot prove prejudice from the failure of
the Commonwealth to have previously produced this notebook, and Appellant is not
entitled to relief on his final claim. Com. v. Johnson, 727 A.2d 1089, 1097 (Pa.
1999) (“a defendant seeking relief from a discovery violation must demonstrate
prejudice”).
IV. Conclusion
For the reasons stated herein, we affirm the judgment of sentence.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :
:
v. :
:
John M. DeMaske, : No. 770 C.D. 2019
Appellant :

ORDER

AND NOW, this 16th day of November, 2022, the judgment of
sentence entered by the Court of Common Pleas of Greene County is AFFIRMED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8484146. Public record. Not legal advice.