J-S10012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIE JAMES BROWN JR.                     :
                                               :
                       Appellant               :   No. 1430 MDA 2019

         Appeal from the Judgment of Sentence Entered July 31, 2019
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0000036-2019


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: MARCH 30, 2020

       Willie James Brown, Jr., appeals from the judgment of sentence imposed

July 31, 2019, in the Schuylkill County Court of Common Pleas. On June 5,

2019, a jury convicted Brown of delivery of a controlled substance (heroin and

fentanyl), conspiracy to deliver a controlled substance (heroin and fentanyl),

and criminal use of communication facility.1 The trial court sentenced Brown

to an aggregate term of five to ten years’ incarceration plus two years of

probation. On appeal, Brown claims the trial court erred by failing to grant his

motion for acquittal based on prosecutorial misconduct. For the reasons

below, we affirm the judgment of sentence.

       The trial court set forth the underlying facts as follows:

____________________________________________


1 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(a)(1) and 7512(a),
respectively.
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           At trial, Minersville police officer Kai Apel - the
     Commonwealth’s first witness - testified that he was serving in an
     undercover capacity on September 29, 2018. A fellow officer, Jeff
     Bowers, was in charge of setting up a controlled buy of drugs from
     [Brown] that day utilizing confidential informant Bruce Houser.
     The morning of September 29, 2018 Officer Apel was seated in
     the rear passenger seat of a motor vehicle being driven by Houser.
     Around 10:00 a.m. [Brown] entered the rear of the vehicle behind
     the driver on Lewis Street in Minersville, Schuylkill County.
     [Brown] was told that the men were looking to buy $300.00 worth
     of methamphetamine or heroin. [Brown] said that he had a
     connection and then used his cellphone to reach the connection.
     Houser drove to Rumor’s Bar in Pottsville after which [Brown]
     directed that he drive to Barefield Park where they picked up
     Roxanne Roberts. The woman got in the front passenger seat of
     the car. She directed that Houser drive behind the Giant store to
     a back alley. Houser did so. Upon arriving at the location, Officer
     Apel handed $300.00 to [Brown] who passed the money to the
     woman who, in turn, passed several bags of suspected heroin to
     [Brown] who then transferred five bags of the suspected drugs to
     Apel. After Roberts left the vehicle, Houser drove to Minersville
     where [Brown] exited the vehicle and Apel returned to the police
     station and provided the five bags to Officer Bowers.

           A field test on the substance in the baggies by Officer
     Bowers - who had been surveilling the movements of the Houser
     vehicle - resulted in a preliminary indication of the presence of
     heroin. A later chemical analysis of the substances by a forensic
     expert determined that the baggies contained a mixture of heroin
     and fentanyl. The parties stipulated to the propriety of the chain
     of custody of the evidence and accuracy of the drug test results.

           [Brown] testified in his own defense. [Brown] admitted to
     having known Bruce Houser before the day of the drug transaction
     because Houser would give [Brown] methamphetamine.
     According to [Brown], Houser had asked if [Brown] could obtain
     heroin for him because Houser knew a woman who was an addict,
     was sick and needed it so she would not be sick. [Brown] testified
     that on the day of the incident he had originally told Houser “no”.
     About two hours later, however, [Brown] communicated with
     Roxanne Roberts who asked [Brown] if he had marijuana and told
     [him] that she had heroin. [Brown] then called Houser and told
     him that he knew someone - meaning Roberts - who could help
     Houser. [Brown] claimed that Houser then picked up [him] and

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       that Apel, the undercover officer, subsequently entered the car.
       After the men traveled to Pottsville [Brown] texted Roberts a few
       times. Upon meeting her, Roberts entered Houser’s vehicle.
       [Brown] testified that he asked Apel for the $300.00, Apel handed
       the money to [him] who then gave it to Roberts. According to
       [Brown], Roberts gave the drugs to the officer. [Brown] claimed
       that the only reason he facilitated the heroin delivery was because
       he wanted to help ease the withdrawal symptoms of the unknown
       woman to whom Houser had referred. Further, [Brown] testified
       that he did not receive heroin that day but that Houser
       subsequently gave him methamphetamine presumably for setting
       up the heroin deal.

Trial Court Opinion, 10/17/2019, at 1-3.

       Brown was charged with multiple offenses related to the incident. As

indicated above, on June 5, 2019, a jury convicted Brown of delivery of heroin

and fentanyl, conspiracy to deliver heroin and fentanyl, and criminal use of

communication facility.2 On July 31, 2019, the court sentenced Brown as

follows: (1) a term of five to ten years’ incarceration for the delivery

conviction; (2) a concurrent term of five to ten years’ imprisonment for the

conspiracy conviction; and (3) a consecutive term of two years’ probation for

the criminal use of communication facility conviction. Brown did not file post-

sentence motions, but did file this appeal.3


____________________________________________


2 The jury found him not guilty of possession with intent to deliver heroin and
fentanyl, possession of heroin and fentanyl, and possession of drug
paraphernalia.

3 On August 29, 2019, the trial court ordered Brown to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Brown
complied with the court’s directive on September 4, 2019. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 17, 2019.


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      Brown raises the following claim for our review:

      Whether the deliberate destruction by an arresting officer of the
      only written police report prepared by Commonwealth’s only
      eyewitness constitutes prosecutorial misconduct?

Appellant’s Brief, at 4.

      By way of background, Officer Apel, who took part in the drug

transaction at issue, prepared a written statement regarding the incident. He

provided it to his supervisor, Officer Bowers, who coordinated the drug

transaction using a confidential informant. See N.T., 6/5/2019, at 49. Officer

Bowers then prepared the criminal complaint and drafted the affidavit of

probable cause, relying upon the report submitted by Officer Apel. See id., at

76-77. Thereafter, Officer Bowers destroyed Officer Apel’s report, which he

stated was his general practice when preparing complaints in criminal cases.

See id., at 95.

      During trial, Officer Apel testified Roberts gave Brown a small amount

of drugs as payment for orchestrating the transaction. See id., at 42. Officer

Apel indicated there was nothing in the affidavit of probable cause that

mentioned the additional drugs being handed to Brown. See id., at 51. Officer

Bowers also testified at the trial, stating that he could not recall whether

Officer Apel’s notes mentioned the additional drugs provided to Brown, and

that the notes were used as “guidelines” and “reference.” Id., at 82, 95.

      At the conclusion of the Commonwealth’s case, counsel for Brown made

an oral motion for acquittal, in which he relied on Brady v. Maryland, 373


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U.S. 83 (1963),4 and argued prosecutorial misconduct for failing to provide

the defense with a copy of Officer Apel’s report. Specifically, counsel asserted:

        We have an officer testifying. He presented -- he prepared a -- a
        typed report provided to Officer Bowers; and it was never provided
        … to defense.

        And what’s really pertinent here is we have testimony that
        includes other facts that aren’t in the final Affidavit which is the
        only report. I think they’re compelled to provide the defense with
        any and all reports they have, and I believe it’s a direct violation
        of Brady.

Id., at 93.

        After hearing argument on the matter, the trial court permitted defense

counsel to present any testimony he desired regarding the weight and

credibility of the testimony of the two officers and the destruction of the

report. See id., at 94-95. Defense counsel declined the court’s offer.5 See id.,

at 95. The court then denied Brown’s motion, finding the matter did not rise

to the level of prosecutorial misconduct. See id., at 96-97.

        Brown now complains:

        The intentional destruction of this written police report prevented
        the defense from viewing the written account of the
        Commonwealth’s only eyewitness. What makes this conduct
        egregious is the fact that the arresting officer went on to state
        that he destroys all such reports in all the cases he handles after
        he prepares the Affidavit of Probable Cause attached to each
____________________________________________


4  Brady provides that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87.

5   Counsel also never requested the court to strike Officer Apel’s testimony.

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      criminal complaint. The intentional destruction of written police
      reports on this case amounts to prosecutorial misconduct on the
      part of the Commonwealth.

Id., at 13-14. Brown states defense counsel is allowed access to such

statements so that counsel “may uncover inconsistencies between witnesses’

pre-trial statements and his testimony at trial.” Id., at 14, quoting

Commonwealth v. Meo, 524 A.2d 902, 905 (Pa. Super. 1987) (citation and

quotation marks omitted). Moreover, he asserts that “defense counsel must

be able to view the statement with the eyes of a trial advocate thus ensuring

that the defense has a fair opportunity to cross-examine the witness.”

Appellant’s Brief, at 15 (citation and quotation marks omitted). Brown

concludes:

      [Here, t]he defense never had the opportunity to cross-examine
      Officer Apel using his written report because it was intentionally
      destroyed by a superior officer. This act actually creates a
      presumption that the report contained exculpatory evidence. The
      Commonwealth cannot rebut this presumption due to the fact that
      the report has been destroyed.

Id.

      Brown’s “destruction of Officer Apel’s written statement” argument

involves a purported violation under Brady. “Brady sets forth a limited duty,

not a general rule of discovery for criminal cases.” Commonwealth v.

Paddy, 15 A.3d 431, 451 (Pa. 2011) (citations omitted). The burden rests on

the defendant to “prove, by reference to the record, that evidence was

withheld or suppressed by the prosecution.” Commonwealth v. Porter, 728

A.2d 890, 898 (Pa. 1999).

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        In order to establish a Brady violation, the Pennsylvania Supreme Court

has previously explained:

        “There are three components of a true Brady violation: [t]he
        evidence must be favorable to the accused, either because it is
        exculpatory, or because it is impeaching; that evidence must have
        been suppressed by the State, either willfully or inadvertently;
        and prejudice must have ensued.”

        Pursuant to Brady and its progeny, the prosecutor “has a duty to
        learn of any favorable evidence known to the others acting on the
        government’s behalf in the case, including the police.” However,
        there is “no constitutional requirement that the prosecution make
        a complete and detailed accounting to the defense of all police
        investigatory work on a case.” “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.”

Commonwealth v. Natividad, 200 A.3d 11, 25-26 (Pa. 2019) (citations

omitted).6 Additionally, “[a] reviewing court is not to review the evidence in

isolation, but, rather, the omission is to be evaluated in the context of the

entire record.” Commonwealth v. Dennis, 17 A.3d 297, 309 (Pa. 2011)

(citation omitted).

        Here, the trial court found the following:

        Based upon the evidence elicited at trial including [Brown]’s own
        testimony this court determined that the record did not support
        any finding that Officer’s [sic] Apel’s notes which he prepared
        following the drug transaction contained any of what may be
        defined as material exculpatory evidence under Brady v.
        Maryland, 373 U.S. 83 (1963) such that failure to disclose the
        information to [Brown] constituted a due process violation.
        Additionally, nothing indicated that the notes of Officer Apel
        contained “potentially useful evidence” which might have
____________________________________________


6   See Pa.R.Crim.P. 573 (governing pretrial discovery in criminal cases).

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      exonerated [Brown] and which the police or prosecuting attorney
      in bad faith failed to preserve. Arizona v. Youngblood, 488 U.S.
      51 (1988); Illinois v. Fisher, 540 U.S. 544 (2004);
      Commonwealth v. Snyder, 963 A.2d 396 (Pa. 2009) See also,
      Commonwealth v. Pickering, 533 A.2d 735 (Pa. Super. 1987)
      (grant of mistrial not warranted due to destruction of undercover
      officer’s notes). In this regard, no evidence was presented to find
      Officer Bowers’ failure to preserve notes he used to construct the
      criminal complaint per his practice was done in bad faith. As
      stated, despite given the opportunity to present evidence on the
      issue at the time he had made the motion following presentation
      of the Commonwealth’s case, [Brown] declined to do so.
      Consequently, as no evidence existed in the record that Apel’s
      notes contained exculpatory or potentially useful evidence for the
      defense that had not been retained in bad faith - including that
      the notes were destroyed after a request for discovery had been
      made, or even in anticipation of such a request - this court
      determined that [Brown]’s motion for judgment of acquittal was
      without merit. Further, although the issue [Brown] raises for
      appellate review is whether the court erred in allowing Officer Apel
      to testify after he admitted destroying his report, [Officer] Apel
      testified he gave his notes to Officer Bowers and no motion to
      preclude Officer Apel from testifying or to strike his testimony had
      been made.

Trial Court Opinion, 10/17/2019, at 4-5. We agree with the court’s analysis.

      To the extent Brown raises a Brady violation, his argument is

substantially deficient for several reasons. First, and of most importance, it is

evident   that   Officer   Apel’s   written   statement   was   never    in   the

Commonwealth’s possession, and therefore, it did not have the opportunity to

suppress the evidence rather than turning it over to the defense. See

Commonwealth v. Roney, 79 A.3d 595, 608 (Pa. 2013) (“The duty to

disclose is limited to information in the possession of the government bringing

the prosecution, and the duty does extend to exculpatory evidence in the files

of police agencies of the government bringing the prosecution.”) (citations and

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emphasis omitted); Commonwealth v. McElroy, 665 A.2d 813, 821 (Pa.

Super. 1995) (“The Commonwealth is only required to produce evidence which

is relevant and which is within its possession.”) (italics in original).

      Furthermore, we find Commonwealth v. York, 465 A.2d 1028 (Pa.

Super. 1983), and Youngblood instructive regarding the implication of Officer

Bower’s actions. In York, an undercover police officer recorded details of her

drug transactions with the defendant immediately following each purchase.

The officer used the recordings to prepare her police report, and then erased

the tapes.

      At the preliminary and suppression hearings, the officer “did not have a

comprehensive recollection of all the details surrounding the events leading to

[the defendant]’s arrest[,]” and “found it necessary to rely upon the previously

mentioned written police reports.” Id., at 1030. The officer also “admitted

that in making her official report she included only the details from her taped

notes which she determined were relevant to the transaction.” Id.

      The trial court suppressed the officer’s preliminary hearing testimony,

finding the “action of destroying her tape recorded notes was a complete

usurpation of a judicial function in deciding what is admissible and that

defense counsel would be severely hindered in their cross examination of

Commonwealth witnesses due to their inability to review [the officer’s] tape

recorded notes.” Id. In reversing the trial court’s decision, a panel of this




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Court concluded there was no evidence “the prosecutor suppressed or

destroyed the tapes.” Id., at 1031. Moreover, the York Court opined:

      In the instant matter while we cannot approve the procedure by
      [the officer] which erased her recorded impressions, we do not
      agree that the action taken by the lower court was appropriate.
      [The defendant]’s right or opportunity to cross-examine the
      witnesses is not so severely affected by the absence of the tapes
      as to warrant the harsh sanction of the witnesses’ suppression.
      [The defendant] still has the chance to fully cross-examine the
      witness regarding her recollections of the events giving rise to the
      arrest. [The defendant] can scrutinize [the officer]’s official report
      in any aspect, as to its contents and compilation, and explore the
      effect of the destruction of the tapes on the witnesses’ credibility.
      The credibility of a witness is within the sole province of the finder
      of fact.

Id. (citation omitted).

      In Youngblood, the police failed to properly preserve certain

evidentiary samples in a sexual assault case. The defendant argued the lost

evidence could have exonerated him. On review, the United States Supreme

Court held “that unless a criminal defendant can show bad faith on the part of

the police, failure to preserve potentially useful evidence does not constitute

a denial of due process of law.” Youngblood, 488 U.S. at 58. The Supreme

Court determined that while the actions of the police were negligent in the

underlying matter, there was no due process violation.

      Turning to the present matter, the trial testimony reveals Officer Bowers

destroyed Officer Apel’s statement after he prepared the criminal complaint in

the matter because it was his general practice to do so. See N.T., 6/5/2019,

at 95. Like in York, and contrary to Brown’s argument, counsel for Brown was


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given several opportunities to explore the effect of the destroyed statement

on the officers’ credibility and he declined to do so. Additionally, other than

presenting a bald allegation of intentional destruction, Brown has not met his

burden in establishing that the failure to preserve the statement was done in

bad     faith.   See   Youngblood.         Therefore,   we   cannot   conclude   the

Commonwealth should be faulted for an independent action taken by Officer

Bowers.

        Second, Brown fails to explain how the destroyed statement was

material and exculpatory. The testimony of both officers established the

statement at issue was incorporated into the criminal complaint, and

consequently, it could be readily considered cumulative evidence. See

Pickering, 533 A.2d at 736-737 (holding where police notes were

substantially incorporated into the police report, they would have been merely

cumulative of the report made available to defense counsel).7

        Furthermore, at Brown’s trial, Officer Apel’s testimony regarding the

evidence that was only included in his written statement (and not in the

complaint) implicated Brown in drug possession rather than exonerated him.

See N.T., 6/5/2019, at 42 (Officer Apel testified Roberts gave Brown a small

amount of drugs as payment for organizing the transaction). Accordingly,

Brown fails to demonstrate the statement was either material or exculpatory.


____________________________________________


7   See also Commonwealth v. Haber, 505 A.2d 273, 278 (Pa. Super. 1986).


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        Third, to the extent Brown contends that pursuant to Meo, defense

counsel had a right to access the statement at issue so that counsel “may

uncover inconsistencies” between the officer’s statement and his testimony at

trial,8 we find such a reliance is misplaced.

        In Meo, the appellants argued the trial court erred in denying defense

counsel access to a report prepared by a police officer that the officer reviewed

before he testified at appellants’ joint trial. Meo, 524 A.2d at 904. The court

denied the defense’s request “because the report contained only [the officer]’s

account of the investigation, and did not contai[n] exculpatory or verbatim

statements from witnesses.” Id., at 905. The Meo Court relied on a prior

decision, Commonwealth v. Robinson, 324 A.2d 441 (Pa. Super. 1974), for

the governing law regarding defense entitlement to view reports. The

Robinson decision provided that relevant, pre-trial witness statements in the

possession of the Commonwealth must be made available to the defendant,

upon request, during the trial, and that rule extended to reports made by

police officers who testify as witnesses. Meo, 524 A.2d at 904-905.

        Turning to the present matter, as we noted above, the Commonwealth

was never in possession of Officer Apel’s statement. Accordingly, Meo is

inapplicable to the case.

        Furthermore, we note:



____________________________________________


8   See Appellant’s Brief, at 14.

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      Neither th[e Pennsylvania Supreme] Court, nor the United States
      Supreme Court, however, have ever held that Brady requires the
      disclosure of information that is not exculpatory but might merely
      form the groundwork for possible arguments or defenses. See
      Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 887
      (2002) (“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.”) (quoting [United States v.] Agurs,
      427 U.S. [97,] 109–10, 96 S.Ct. [2392,] 2400 [1976]).

Commonwealth v. Lambert, 884 A.2d 848, 856 (Pa. 2005).

      Here, the crux of Brown’s argument is that Officer Apel’s notes might

have yielded possible arguments in his defense regarding the credibility of the

officers and that the destruction of the statement created a presumption that

it contained exculpatory evidence. Nevertheless, such notions and assertions

amount to mere speculation, which does not support a determination that the

Commonwealth violated Brady. Therefore, we conclude Brown’s argument

fails, and the trial court did not err by failing to grant his motion for acquittal

based on prosecutorial misconduct.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/30/2020


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