J-S78040-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    :     IN THE SUPERIOR COURT OF
                                                     :           PENNSYLVANIA
                  Appellee                           :
                                                     :
          v.                                         :
                                                     :
    DERRICK MICHAEL GLEASON,                         :
                                                     :
                  Appellant                          :    No. 1101 WDA 2017

                 Appeal from the Judgment of Sentence April 11, 2017
                     in the Court of Common Pleas of Potter County
                  Criminal Division at No(s): CP-53-CR-0000067-2016

BEFORE:          OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                           FILED FEBRUARY 14, 2018

        Derrick Michael Gleason (Appellant) appeals from his judgment of

sentence imposed after a jury convicted him of aggravated assault,

aggravated assault by vehicle, two counts of homicide by vehicle, criminal

mischief – tampering with property, two counts of involuntary manslaughter,

simple     assault,    and    reckless     endangerment.1       Specifically,   Appellant

challenges (1) the denial of his pre-trial motion to suppress evidence relating

to the Commonwealth’s accident reconstruction investigation, and (2) the trial

court’s        evidentiary    ruling     limiting   his    cross-examination     of   the

Commonwealth’s accident reconstruction investigators, prohibiting him from

inquiring about the Commonwealth’s failure to preserve the wreckage of the

two vehicles involved in the accident. We affirm.



1   The trial court also convicted him of various traffic violations.
*Retired Senior Judge assigned to the Superior Court.
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      The Commonwealth filed a criminal complaint on February 17, 2016,

charging Appellant with the aforementioned offenses, all of which stemmed

from a fatal car accident. Prior to trial, Appellant filed a motion to suppress

all evidence “arising out of or in connection with [the Pennsylvania State

Police’s (PSP)] scientific reconstruction of the accident in question on the basis

that the Commonwealth has willfully and knowingly destroyed the key

evidence on which such evidence … is based [i.e., the two vehicles involved in

the accident], and has willfully and unnecessarily deprived the defense of the

opportunity to perform its own comparable investigation.”              Motion to

Suppress, 10/17/2016, at 5. Following a hearing on Appellant’s motion, the

trial court made the following findings of fact.

            [O]n September 18, 2015, [Appellant] was driving a 2003
      Kia sedan, allegedly at a high rate of speed in Wharton Township,
      Potter County, Pennsylvania. Rounding a curve, [Appellant’s]
      northbound vehicle crossed into the southbound lane and collided
      with a southbound 2015 Jeep Wrangler, which had veered right in
      an apparent effort to avoid the collision. [Appellant] and the
      driver of the Jeep, Mr. Wimer, were seriously injured.
      [Appellant’s] two passengers were killed. The Commonwealth
      alleged [Appellant’s] speed prior to the accident to be in excess of
      80 miles per hour while the Wimer vehicle was going about 46
      miles per hour.

            After the accident[,] the heavily damaged vehicles were
      taken to Black’s Auto Body Shop[,] which has a secure enclosure
      for vehicles.

            Thereafter, Corporal Batterson of the [PSP], an accident
      reconstructionist, obtained a search warrant and examined both
      vehicles, noting they both had recent Pennsylvania inspections.
      After the Corporal’s work was complete, it was decided that the
      vehicles would not be retained, and they were released to private

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      parties for salvage. Months later, in approximately February
      2016, a criminal complaint was filed. …

Trial Court Opinion, 1/19/2017, at 1-2 (pagination supplied).

      After taking the motion under advisement, the trial court issued an

opinion and order denying the motion. The court determined that because

Appellant was arguing that defense examination of the vehicles “may have

been useful,” pursuant to Commonwealth v. Snyder, 963 A.2d 396 (Pa.

2009), Appellant was required to show that the Commonwealth acted in bad

faith by not preserving the vehicles.   Trial Court Opinion, 1/19/2017, at 2

(page numbers supplied). The court concluded Appellant did not “set forth

any theory or facts which might have benefitted the defense” and failed to

“demonstrate[] any suggestion of bad faith.” Id.

      The case proceeded to trial.      In addition to other witnesses, the

Commonwealth called two expert witnesses: Corporal Batterson, who

performed PSP’s post-accident reconstruction and investigation, and Corporal

Michael Schmit, who assisted Corporal Batterson. The defense called several

witnesses including William Wetzel, its own expert regarding accident

reconstruction. After hearing all of the evidence, the jury convicted Appellant

of the aforementioned offenses, and the trial court found Appellant guilty of

various traffic-related summary offenses.     Appellant was sentenced to an

aggregate term of 140 to 280 months’ incarceration and fines. Appellant filed




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timely an unsuccessful post-sentence motion and the instant notice of appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following two issues on appeal.

      1. Did the trial court err in failing to exclude expert testimony and
      conclusions derived from the state police inspection of two
      vehicles involved in a fatal accident when the state police failed to
      impound and preserve such vehicles following [its] inspection?

      2. Did the trial court err in barring the defense from cross-
      examining state police investigators at trial regarding the
      decision-making process that led to their failure to impound and
      preserve the vehicles involved in the fatal accident in question?

Appellant’s Brief at 1 (unnecessary capitalization omitted).

      Regarding Appellant’s first issue,

      we begin by emphasizing that our standard of review in
      addressing a challenge to a trial court’s denial of a suppression
      motion is limited to determining whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. We are bound by the suppression
      court’s factual findings so long as they are supported by the
      record; our standard of review on questions of law is de novo.
      Where, as here, the defendant is appealing the ruling of the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted. Our scope of review of suppression
      rulings includes only the suppression hearing record and excludes
      evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

      In Illinois v. Fisher, 540 U.S. 544 (2004), the defendant filed a motion

for discovery requesting all physical evidence the state planned to use at trial,

including the white powdery substance seized from the defendant during his

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arrest. Id. Before the state complied with the discovery request and prior to

trial, the defendant absconded. While the defendant remained a fugitive, the

police, acting in accord with established procedures, destroyed the substance,

notwithstanding the pending discovery request. Id. at 546.

      The Court summarized its prior case law as follows.

      We have held that when the State suppresses or fails to disclose
      material exculpatory evidence, the good or bad faith of the
      prosecution is irrelevant: a due process violation occurs whenever
      such evidence is withheld. See Brady v. Maryland, 373 U.S. 83
      [] (1963); United States v. Agurs, 427 U.S. 97 [] (1976). In
      [Arizona v. Youngblood, 488 U.S. 51 (1988)], by contrast, we
      recognized that the Due Process Clause “requires a different result
      when we deal with the failure of the State to preserve evidentiary
      material of which no more can be said than that it could have been
      subjected to tests, the results of which might have exonerated the
      defendant.” 488 U.S.[ at 57]. We concluded that the failure to
      preserve this “potentially useful evidence” does not violate due
      process “unless a criminal defendant can show bad faith on the
      part of the police.” Id.[ at 58] (emphasis added).

Id. at 547-48.

      The police’s testing of the substance demonstrated “that the chemical

makeup of the substance inculpated, not exculpated” the defendant. Id. at

548. The Court concluded that because at most, all the defendant could argue

is that he hoped more testing might exonerate him, the lost substance “was

plainly the sort of ‘potentially useful evidence’ referred to in Youngblood.”

Id. at 548. The Court stressed that the centrality of the contested evidence

to the prosecution’s case or the defendant’s defense is of no moment; instead,

the important distinction lies between “material exculpatory” evidence and



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“potentially useful” evidence.   Id. at 549.   The Court re-affirmed its prior

holding 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.” Id. at 545 (citing Youngblood, 488 U.S. at

58). Because the trial court found that the police did not act in bad faith when

they disposed of the substance, the Court held that due process was not

violated when the state introduced the results of their examination of the

substance at trial. Id.

      “[I]n Commonwealth v. Snyder, [] 963 A.2d 396, 405 ([Pa.] 2009),

the Pennsylvania Supreme Court adopted the Fisher approach as the

‘governing standard.’” Commonwealth v. Borovichka, 18 A.3d 1242, 1251

(Pa. Super. 2011).    “In Snyder, defendants, who had been charged with

violations under the Solid Waste Management Act, filed a motion to suppress

the results of the tests on the soil sample, which they claimed was destroyed

before they could independently test it.”2      Id.   The Court held that in

circumstances where the Commonwealth destroys potentially useful evidence

before the defendant has an opportunity to examine it, Fisher requires the

defendant to show the Commonwealth acted in bad faith in order to establish

a due process violation, no matter how central or helpful the evidence may be

to the defense or prosecution’s case. Snyder, 963 A.2d at 404-05. The Court



2
 As in this case, the Commonwealth destroyed the samples prior to bringing
charges against the defendant. Id. at 399.
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determined the destroyed evidence was “merely potentially useful,” and the

trial court erred in suppressing the Commonwealth’s test results because the

Commonwealth did not destroy the samples in bad faith, even though the

prosecution sought to use the samples at trial, the evidence would be central

to the prosecution’s case, and the disposal was “unnecessary.” Id. at 406.

       In the instant case, Appellant points to “[e]xtensive and un-

contradicted testimony” presented by the defense expert at the suppression

hearing “that without access to the actual vehicles, it was impossible to

confirm the proper operation of the braking systems and other mechanical

systems, the condition of the tires, or that no other mechanical factors

contributed to the accident.” Appellant’s Brief at 6. Appellant argues that he

“suffered clear prejudice when the prosecution was permitted to present

expert analysis blaming [Appellant] for the accident because the defense had

no available means of independently evaluating the evidence on which such

expert analysis was based.” Id. at 5-6. Appellant acknowledges that the

PSP investigators had no “evil intent” when they failed “to preserve the key

physical evidence in this case,” but claims the investigators acted in an

“inexplicably negligent” fashion. Id. at 7, n.2. According to Appellant, “due

process requires … such serious negligence [to] be considered bad faith even

if evil intent is lacking.” Id. at 7.

      Furthermore,     Appellant    argues    that   this   case   is   analogous   to

Commonwealth v. Deans, 610 A.2d 32 (Pa. 1992), wherein our Supreme

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Court upheld the exclusion of prosecution expert testimony after an allegedly

forged lottery ticket was lost before the defense could examine it. Appellant

argues that as in Deans, the unpreserved evidence is “not just unavailable to

the defense for potential use as a shield, [the evidence was] even used in

absentia by the prosecution as a sword against the defense.” Appellant’s Brief

at 7.

        Appellant’s arguments fail. It is clear that the wreckage of the vehicles

constitutes “potentially useful” evidence, not “material exculpatory” evidence,

as Appellant contends that the vehicles “could have been subjected to tests

[by his own expert], the results of which might have exonerated [him].” See

Fisher, 540 U.S. at 548 (citing Youngblood, 488 U.S. at 57) (emphasis

added). See also Appellant’s Brief at 6 (“[I]n this case clear reason exists for

believing that exculpatory evidence may have been available but for the

Commonwealth’s decision to release the vehicles for destruction.”) (emphasis

added).

        Thus, to prevail on the suppression motion, Appellant was required to

show that the Commonwealth acted in bad faith when it failed to preserve the

wreckage of the vehicles. Even if we were to agree with Appellant’s contention

that the Commonwealth acted negligently, Appellant cites to no authority to

support his bald contention that negligence constitutes bad faith. Nor can he;

the United States Supreme Court has made clear that bad faith requires more

than negligence. Youngblood, 488 U.S. at 58.

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      Furthermore, Appellant’s reliance on Deans is misplaced, as our

Supreme Court held that Deans was no longer valid law after Fisher.

Snyder, 963 A.2d at 404-05.       In doing so, the Snyder Court specifically

rejected the argument that the prosecution should not be able to use evidence

to inculpate a defendant if the defendant has not been able to examine the

evidence independently. Id. at 404 (stating that “bad faith is required for a

due process violation where merely potentially useful evidence is destroyed,

no matter how useful to the prosecution”).

      The   record   supports   the   trial   court’s   determination   that   the

Commonwealth did not act in bad faith. Corporal Sean S. Batterson of the

PSP testified that the vehicles were secured at Black’s Auto Body and PSP

never took possession of the vehicles. N.T., 1/13/2017, at 34-35. Corporal

Batterson gathered “information [from the] vehicles [he] felt was going to be

pertinent to counsel for the Commonwealth and [d]efense,” and removed and

preserved airbag modules and data from the vehicles. Id. at 41-42. Corporal

Batterson determined there was no further information “anybody would

possibly need.” Id. at 42. After consultation with another officer and the

district attorneys’ office, Corporal Batterson informed Black’s Auto Body that

PSP was done processing the vehicles.         Id. at 41-46.   Corporal Batterson

testified that he did not find any evidence that was exculpatory or even

“potentially usable” to the defense during his investigation of the vehicles. Id.

at 50. Black’s Auto Body released the Kia to Appellant’s family, as Appellant

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was still in the hospital recuperating from the injuries he sustained in the

accident, and the Jeep to Mr. Wimer’s insurance company. Id. at 53. Because

the record does not support a finding of bad faith, we conclude the trial court

did not err in denying Appellant’s motion to suppress the results of the

Commonwealth’s accident investigation.

      Regarding his second issue, Appellant argues that he was denied a fair

trial because the trial court prohibited him from cross-examining the PSP

investigators “regarding their failure to take any steps to impound and

preserve the vehicles involved in the accident following their own inspection

of same.” Appellant’s Brief at 8. Appellant contends that cross-examination

exploring why PSP failed to preserve the vehicles would have permitted the

jury to infer that “failure to preserve the vehicles in question, even if not

legally mandated, still demonstrated a carelessness that undermined the basic

credibility of the PSP’s findings.” Id. at 9.

      We use the following standard in cases involving evidentiary rulings

limiting cross-examination. “A trial court has discretion to determine both the

scope and the permissible limits of cross-examination. The trial judge’s

exercise of judgment in setting those limits will not be reversed in the absence

of a clear abuse of that discretion, or an error of law.” Commonwealth v.

Briggs, 12 A.3d 291, 335 (Pa. 2011) (quotation marks and citations omitted).

      Here, Appellant was free to question the PSP investigators regarding

their methods of investigation and the soundness of their conclusions. Based

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upon its pre-trial ruling denying Appellant’s motion to suppress, however, the

trial court limited the scope of cross-examination regarding preservation of

the vehicles to the fact that the vehicles had not been preserved, and informed

the defense that it would advise the jury that PSP had no legal duty to preserve

the vehicles. See, e.g., N.T., 1/13/2017, at 182-86. Since the trial court had

already determined that the Commonwealth was not legally required to

preserve the vehicles, we fail to see how further inquiry into the

Commonwealth’s failure to preserve was relevant in any fashion.3 Even if it

were somehow relevant to the investigators’ credibility, the trial court was

free to exercise its discretion and broad latitude to ensure that there was no

confusion of the issues. Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa.

Super. 2017). Appellant fails to convince us that the trial court abused its

discretion or committed an error of law in limiting the scope of cross-

examination.

      Based on the foregoing, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




3 In its Rule 1925(a) opinion, the trial court states that the reasoning used in
its order and opinion denying Appellant’s motion to suppress is applicable to
all of Appellant’s issues on appeal. When discussing the limitations upon
cross-examination at trial, the trial court again referred to its pre-trial ruling
denying Appellant’s motion to suppress and did not elaborate further upon its
reasoning. Thus, the trial court never articulated the precise basis upon which
it made its evidentiary ruling. However, “[i]t is well-settled that this Court
may affirm a trial court’s ruling on any basis.” Commonwealth v. Kennedy,
151 A.3d 1117, 1127 (Pa. Super. 2016).
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2018




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