J-A13016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRYAN HILL,                                :
                                               :
                       Appellant               :   No. 773 WDA 2017

           Appeal from the Judgment of Sentence December 20, 2016
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0007301-2016

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                            FILED FEBRUARY 22, 2019

        Appellant, Bryan Hill, appeals from the Judgment of Sentence entered

by the Allegheny County Court of Common Pleas after his conviction following

a bench trial of two misdemeanor counts of Driving Under the Influence

(“DUI”) and one summary count of Reckless Driving.1 We affirm.

        The trial court set forth the relevant facts in detail in its December 6,

2017 Opinion, which we summarize as follows. In the early morning hours of

April 22, 2015, Sergeant Joseph Blaze and several other Penn Hills police

officers were investigating a report of shots fired, driving through the area

near Frankstown Road and Robinson Boulevard in an attempt to locate the

shooter. As Sergeant Blaze proceeded through the intersection with a green

light, he heard tires squealing and saw Appellant to his left driving a dark gray

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1   75 Pa.C.S. § 3802 and 75 Pa.C.S. § 3736, respectively.
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vehicle and speeding directly at him.            Appellant’s vehicle entered the

intersection in an uncontrolled skid, with the back wheels locked and smoke

coming from the back tires. The police car made it through the intersection

with Appellant’s vehicle nearly hitting it. Sergeant Blaze immediately turned

his vehicle around and pursued Appellant. Other officers joined in the pursuit.

       Sergeant Blaze and Officer Dustin Hess followed Appellant’s vehicle to a

residential driveway. By the time they arrived, Appellant was walking away

from the vehicle toward the front door of the residence. The officers observed

that he “appeared to be highly intoxicated, smelled strongly of alcohol, had

difficulty with balance[,] and had urinated in his pants.” Trial Court Opinion,

filed 12/6/17, at 4.

       Officer Hess ordered Appellant to stop so they could speak to him, but

Appellant ignored them and started pounding on the front door. Appellant

then stated, “I didn’t almost hit you,” “I wasn’t going too fast,” and “I made

it home, you guys can’t stop me.” Id. at 5.

       Because Appellant’s vehicle was listed as stolen in the police

department’s system, the officers placed Appellant in handcuffs during their

brief investigation.2 Appellant could not complete field sobriety testing due to

his inebriated condition and lack of cooperation.       The officers, thus, drove

Appellant to the police station for chemical testing.


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2The officers eventually determined the stolen status was inaccurate because
an old report should have been cleared.

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       At the police station, Appellant refused to take a breath test and

“continued to be loud, boisterous, belligerent, and uncooperative.” Id. The

officers released Appellant to his mother at 4:30 A.M.     Shortly thereafter,

Appellant returned to the police station lobby and refused to leave until his

mother gave him his car keys. Appellant’s mother refused given his condition,

and Appellant remained at the police station until his grandmother picked him

up at 5:50 A.M.

       The Commonwealth charged Appellant with two misdemeanor counts of

DUI, Reckless Driving, Failure to Stop at Red Signal, and Driving Vehicle at

Safe Speed.3 At his August 1, 2016 formal arraignment, Appellant received a

packet of relevant documents, including the Criminal Information. The court

scheduled trial for October 7, 2016.

       On September 23, 2016, Appellant filed a Motion to Suppress his

statements to police. On October 3, 2016, Appellant filed a boilerplate Motion

for Discovery for the upcoming October 7th trial, requesting, among other

things, “any video and/or audio recording from any police vehicles involved in

the instant case.” Motion for Discovery, 10/3/16, at 2. On October 11, 2016,

the trial court granted Appellant’s Motion, listing each of the items requested

in its Order, and in a handwritten notation directing the Commonwealth to




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375 Pa.C.S. § 3802; 75 Pa.C.S. § 3736; 75 Pa.C.S. § 3112(a)(3); and 75
Pa.C.S. § 3361, respectively.

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provide defense counsel with any discovery not given to Appellant in his

packet at his formal arraignment.

      On October 14, 2016, the rescheduled trial date, Appellant moved to

dismiss the charges because the Commonwealth purportedly had failed to turn

over dashboard camera footage of the incident.      After the Commonwealth

asserted that no video existed, the trial court briefly questioned Sergeant

Blaze and another officer who had participated in the car chase. The officers

informed the court that their in-car camera systems record video, which the

system automatically purges after 90 days.      N.T., 10/14/16, at 5-6.    The

officers stated that they did not preserve any video from the April 2015

incident because: (1) they had not conducted a traditional DUI stop; (2) there

was no relevant footage based on the location of the police cars in relation to

Appellant’s vehicle; and (3) they had not received any requests to preserve

the video footage. Id. at 5-7.

      The trial court denied Appellant’s Motion to Dismiss and proceeded

directly to a hearing on Appellant’s Motion to Suppress. The court denied the

Motion to Suppress and held an immediate bench trial. At the conclusion of

the trial, the court found Appellant guilty of two counts of DUI and Reckless

Driving.

      On December 13, 2016, the trial court imposed an aggregate sentence

of three to six days’ incarceration, followed by six months’ probation.




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Appellant filed a timely Post-Sentence Motion, which the trial court denied on

April 27, 2017.

       Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

       Appellant raises the following issue for our review:

       Whether the trial court abused its discretion in denying
       [Appellant’s] request   for dismissal   relating  to  the
       Commonwealth’s intentional misconduct in destroying video
       evidence?

Appellant’s Brief at 9.4

       Appellant alleges that the Commonwealth denied him due process of law

when it failed to produce dashboard camera video as ordered, and the trial

court, thus, “committed an abuse of discretion in not dismissing [Appellant’s]

case.” Appellant’s Brief at 16. He also contends that the Commonwealth’s

“intentional disregard for potentially useful evidence to [Appellant] constituted

blatant and egregious misconduct.” Appellant’s Brief at 19.

       An allegation of a due process violation presents a pure question of law;

thus, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013). To the

extent that the trial court’s factual findings impacted its denial of Appellant’s


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4In his Reply Brief, Appellant clarified that he is not presenting a claim under
Brady v. Maryland, 373 U.S. 83 (1963) (holding that it is a violation of a
defendant’s right to due process to withhold evidence that is favorable to the
defense and material to the defendant’s guilt or punishment). See Reply Brief
at 1-2.

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Motion for Dismissal, “we apply a more deferential standard of review to those

findings.” Id. Further, the weight to be accorded the evidence “is exclusively

for the fact finder, whose findings will not be disturbed on appeal if they are

supported by the record.” Id. (citations omitted).

      The dismissal of charges “is an extreme sanction that should be imposed

sparingly and … only in cases of blatant prosecutorial misconduct.”

Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001).

      A dismissal punishes not only the prosecutor, but also the public
      at large because “the public has a reasonable expectation that
      those who have been charged with crimes will be fairly prosecuted
      to the full extent of the law.” Commonwealth v. Shaffer, 551
      Pa. 622, 712 A.2d 749, 753 (1998). Therefore, a trial court should
      consider dismissal of charges only where the actions of the
      Commonwealth are egregious and where demonstrable prejudice
      will be suffered by the defendant if the charges are not dismissed.
      Id.

Commonwealth v. Goldman, 70 A.3d 874, 881 (Pa. Super. 2013).

      Pre-trial discovery in criminal cases is governed by Pennsylvania Rule of

Criminal Procedure 573. The Rule lists certain items and information that are

subject to mandatory disclosure by the Commonwealth when they are: (1)

requested by the defendant, (2) material to the case, and (3) within the

possession or control of the prosecutor. See Pa.R.Crim.P. 573(B)(1). The

Rule also lists information and evidence subject to discretionary disclosure

when the request is reasonable. See Pa.R.Crim.P. 573(B)(2).

      Decisions involving discovery matters are within the sound discretion of

the trial court and will not be overturned absent an abuse of that discretion.


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Commonwealth v. Smith, 955 A.2d 391, 394 (Pa. Super. 2008) (en banc).

“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.” Commonwealth v. Antidormi, 84

A.3d 736, 749-50 (Pa. Super. 2014) (citations omitted).

       When raising a due process claim that the Commonwealth failed to

preserve “potentially useful” evidence, as opposed to a claim of a Brady

violation, a defendant must show “bad faith on the part of the police.”

Arizona v. Youngblood, 488 U.S. 51, 58 (1988).5            See also Illinois v.

Fisher, 540 U.S. 544, 547-48 (2004) (discussing case law and distinguishing

between situations involving “potentially useful” evidence from those involving

“material exculpatory evidence”); Commonwealth v. Coon, 26 A.3d 1159,

1162 n.2 (Pa. Super. 2011) (analyzing a due process claim in connection with

lost evidence, and adopting the “bad faith” standard applicable to “potentially

useful,” but not materially exculpatory, evidence as acceptable under the both

the United States and Pennsylvania Constitutions).

       The United States Supreme Court has made clear that bad faith requires

more than negligence. Youngblood, supra at 58. A determination of bad

faith is a credibility determination, and we are bound by a trial court’s finding


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5 These claims are distinct from similar Brady claims challenging the failure
to produce or disclose “material exculpatory” evidence.

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that the Commonwealth did not act in bad faith if that finding is supported by

the record. See, e.g., Commonwealth v. Snyder, 963 A.2d 396, 406 (Pa.

2009) (stating that “it is very unlikely we could find bad faith where samples

are destroyed pursuant to standard procedure[.]”).

        Because the requested video evidence was only “potentially useful” in

this case, Appellant needed to show that the Commonwealth acted in bad faith

in failing to produce the dashboard camera video. Youngblood, supra at 58.

Here, the trial court concluded that the potentially useful “video would not

have been captured under these circumstances and that no video of the

incident existed[.]”     See Trial Court Opinion, filed 12/6/17, at 9-10.    The

court observed, after listening to the testimony of the police officers, that the

dashboard cameras would not have recorded relevant footage because of the

location of the police cars relative to Appellant’s vehicle before, during, and

after the pursuit. The court also noted that Appellant had not submitted a

request to preserve the video footage within the 90-day window before the

system automatically purged the footage in question pursuant to police

policy.6 Importantly, the trial court did not find that the Commonwealth acted

negligently or in bad faith.7


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6   See N.T., 10/14/16, at 6-7.

7 We acknowledge that the trial court did not specifically state that the
Commonwealth did not act in bad faith, but its Opinion makes clear it
considered the facts and the officers’ testimony to reach its conclusion that
the Commonwealth did not act improperly.

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       Our review of the record supports the trial court’s factual findings and

credibility determinations.       Because the evidence was merely “potentially

useful,” and Appellant failed to prove that the Commonwealth acted in bad

faith or otherwise “egregiously,” we conclude the trial court did not err in

denying Appellant’s Motion to Dismiss. Shaffer, 712 A.2d at 753. Appellant’s

arguments to the contrary are unavailing and he is not entitled to relief.8

       Based on the foregoing, we affirm Appellant’s Judgment of Sentence.

       Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2019




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8 Appellant includes extensive discussion in his Brief regarding the impropriety
of allowing police officers to purge dashboard camera video after 90 days
based on their “unilateral decision that the video was not relevant or useful to
the prosecution of [Appellant.]” Appellant’s Brief at 21-25. Appellant’s
argument fundamentally implicates police policy, a topic we decline to address
under the facts presented here, and which is more appropriately a topic for
the legislature’s consideration.

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