J-A13008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FRANCIS ADAMS, JR.

                        Appellant                   No. 829 WDA 2014


         Appeal from the Judgment of Sentence October 29, 2013
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-SA-0000005-2013


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 4, 2015

     Appellant, Francis Adams, Jr., appeals from the judgment of sentence

entered October 29, 2013, by the Honorable John F. Wagner, Jr., Court of

Common Pleas of Fayette County. After careful review, we affirm.

     As we write primarily for the benefit of the parties, we will set forth

only so much of the procedural and factual history of the appeal as is

necessary to this memorandum. Pennsylvania State Trooper Christina Marth

was traveling in her cruiser when she ran the registration on a vehicle she

observed, which returned records indicating that the registered owner of the

vehicle had a DUI related driver’s license suspension. Trooper Marth, using a

PennDot picture of Adams’s driver license, identified Adams through the

mirrors of the car as the driver. Trooper Marth issued a seat belt warning
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and a traffic citation to Adams for driving while operating privilege is

suspended or revoked.

      After a summary trial, Adams was found guilty of driving while his

operating privilege was suspended or revoked pursuant to 75 Pa.C.S.A. §

1543(b). Adams was later sentenced to 60 days of intermediate punishment

to be served in house arrest with electronic monitoring. Adams subsequently

filed a post-sentence motion, which the trial court denied.

      Adams then filed a petition for reinstatement of direct appeal rights

nunc pro tunc, which was granted. This timely appeal followed.

      On appeal, Adams challenges the sufficiency and weight of the

evidence supporting his conviction for driving while operating privilege is

suspended or revoked. Adams also claims that the Commonwealth’s failure

to provide pertinent evidence violated his due process rights.

      We review a challenge to the sufficiency of the evidence as follows.

             The standard we apply when 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 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 facts 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

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      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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused’s guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Adams’s sufficiency of the evidence claim consists of a suppression of

the evidence claim and an ex post facto constitutional claim within his

sufficiency of the evidence argument. Neither of these claims, of course,

even constitute a challenge to the sufficiency of the evidence. (In any event,

neither was even raised in the court below. See Pa.R.A.P. 302(a)). Adams

also challenges the sufficiency of the evidence by asserting that “[t]estimony

and an [e]xpert’s opinion this Honorable [c]ourt accepted as fact directly

contradicts and undermines Trooper Marth’s testimony and credibility.”

Appellant’s Brief, at 12. This is also not a sufficiency of the evidence claim,

as questions of credibility should be raised as weight of the evidence claims.

See Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997).

      We next address Adams’s weight of the evidence claim. The finder of

fact is the exclusive judge of the weight of the evidence as the fact finder is

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free to believe all, part, or none of the evidence presented and determines

the credibility of the witnesses. See Commonwealth v. Champney, 832

A.2d 403, 408 (Pa. 2003). As an appellate court, we cannot substitute our

judgment for that of the finder of fact. See id. Therefore, we will reverse a

jury’s verdict and grant a new trial only where the verdict is so contrary to

the evidence as to shock one’s sense of justice. See Commonwealth v.

Passmore, 857 A.2d 697, 708 (Pa. Super. 2004).

      A verdict is said to be contrary to the evidence such that it shocks

one’s sense of justice when “the figure of Justice totters on her pedestal,” or

when “the jury’s verdict, at the time of its rendition, causes the trial judge to

lose his breath, temporarily, and causes him to almost fall from the bench,

then it is truly shocking to the judicial conscience.” Commonwealth v.

Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d,

938 A.2d 198 (Pa. 2007).

      Furthermore,

         where the trial court has ruled on the weight claim below,
         an appellate court’s role is not to consider the underlying
         question of whether the verdict is against the weight of
         the evidence. Rather, appellate review is limited to
         whether the trial court palpably abused its discretion in
         ruling on the weight claim.

Champney, 832 A.2d at 408 (citation omitted).

      Adams challenges the weight the trial court afforded to Trooper

Marth’s testimony. The witnesses Adams presented testified that it was

impossible for Trooper Marth to identify Adams through the windows due to

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the dirt accumulated on them. Adams believed this effectively contradicted

Trooper Marth’s testimony that she was able to identify Adams through the

rear view and side mirrors of the car. The trial court, acting as the factfinder,

was free to determine the weight to give Adams’s expert, in light of Trooper

Marth’s testimony. “It is beyond argument that the fact-finder is free to

accept or reject the credibility of both expert and lay witnesses, and to

believe all, part or none of the evidence.” Gunn v. Grossman, 748 A.2d

1235, 1240 (Pa. Super. 2000) (citation omitted). The trial court found that

the testimony of Trooper Marth was more credible. We do not find such a

verdict, placing faith in a sworn officer of the law’s testimony, to be against

the evidence as to shock one’s sense of justice. Thus, Adams’s argument

merits no relief.

       Adams final argument is that the Commonwealth’s failure to provide

pertinent evidence violated his right to due process. Specifically, that the

Commonwealth’s failure to produce the mobile video recording (“MVR”) of

the traffic stop was in direct violation of Brady v. Maryland, 373 U.S. 83

(1963).1


____________________________________________


1
  Adams attempts to raise two sub-arguments within his Brady claim. First,
that Pennsylvania State Police did not follow policy in regards to retaining
the MVR. Second, that the policy as written violates Brady. Adams did not
raise either claim in the lower court. Therefore, we deem them waived. See
Pa.R.A.P. 302(a).




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       In Brady, the Court decided 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.” Id., at 87 (emphasis

added). To prove a Brady violation, the defendant bears the burden of

demonstrating that: “(1) the prosecutor has suppressed evidence; (2) the

evidence, whether exculpatory or impeaching, is helpful to the defendant,

and (3) the suppression prejudiced the defendant.” Commonwealth v.

Koehler, 36 A.3d 121, 133 (Pa. 2012) (citation omitted).

       Adams cannot prove that the Commonwealth suppressed the evidence.

No Brady violation occurs where the parties had equal access to the

information or if the appellant knew or could have uncovered such evidence

with reasonable diligence. See Commonwealth v. Collins, 888 A.2d 564,

578 (Pa. 2005). Adams had a 31-day window in which he could have

accessed the MVR video. See Reproduced Record, at 97a.2 During this 31-

day period, there was equal access to the MVR. Reasonable diligence on the

part of Adams would have provided him access to the MVR. Therefore, since
____________________________________________


2
   A letter referencing the departmental policy for retention of mobile
video/audio recordings has been included in the reproduced record. It is not
in the certified record. This Court has, under certain circumstances,
overlooked an omission of material from the certified record when it could be
found in the reproduced record. See, e.g., Stewart v. Owens-Corning
Fiberglas, 806 A.2d 34, 37 n.3 (Pa. Super. 2002). See also Pa.R.A.P.
1921 Note. No one has disputed the letter’s authenticity and we will
therefore consider it in the disposition of this issue.



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there was equal access to the MVR no Brady violation has occurred. See

See Collins, 888 A.2d at 578.

     Second, a Brady claim is valid only if the withheld evidence was

exculpatory, as compared to “potentially useful,” and there was a showing of

bad faith on the part of the Commonwealth. See Commonwealth v.

Snyder, 963 A.2d 396, 406 (Pa. 2009). Here, the attorney for the

Commonwealth contends that the MVR was never in their possession. See

Appellee’s Brief, at 6. Adams provided no evidence to prove otherwise.

Furthermore, Adams make no assertion as to the MVR’s relevance to the

case at hand.

     Adams also baldly claims that “the failure of the Commonwealth to

provide the Petitioner with NCIC records prior to trial violates” Brady.

Appellant’s Brief, at 22. That is the sum and substance of this claim; it is

completely undeveloped. Therefore, we deem the argument pertaining to the

NCIC records waived. See Commonwealth v. Bavusa, 832 A.2d 1042,

1052 (Pa. 2003) (reiterating that arguments for undeveloped claims are

waived).

     Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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