J-S56013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LAMAR L. DAVIS,

                            Appellant                  No. 31 MDA 2016


        Appeal from the Judgment of Sentence Entered January 5, 2016
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000303-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 16, 2016

        Appellant, Lamar L. Davis, appeals from the judgment of sentence of

18 months’ to 4 years’ incarceration, followed by one year probation,

imposed after he was convicted of possession with intent to deliver a

controlled substance (PWID), 35 P.S. §780-113(a)(3), false identification to

a law enforcement officer, 18 Pa.C.S. § 4914(a), and a violation of Motor

Vehicle Code’s general lighting requirements, 75 Pa.C.S. § 4303(b).      On

appeal, Appellant solely challenges the trial court’s denial of his pretrial

motion to suppress. After careful review, we affirm.

        Appellant was charged with the above stated offenses following a

traffic stop of his vehicle on February 12, 2015, by Officer Robert Brown of

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S56013-16



the Williamsport Bureau of Police. Prior to trial, Appellant filed a motion to

suppress the evidence discovered during that traffic stop. The suppression

court summarized the facts established at the hearing on Appellant’s motion,

as follows:

            [Officer] Brown … has been an officer with Williamsport
      Bureau of Police since December 5, 2011. On February 12,
      2015, [Officer] Brown was driving a patrol car. At 12:20 a.m.,
      he stopped [Appellant’s] vehicle after observing that the
      vehicle’s center brake light and registration light were not
      functioning.

             When the stop occurred, the Williamsport Bureau of Police
      was transitioning to a new video system in patrol cars. Some
      patrol cars did not yet have the new system, which automatically
      transfers video from the car’s camera to a database. With the
      “old” video system, an officer had to insert an “SD” card. The
      camera in the patrol car would start recording when the officer
      activated the car’s emergency lights. At the end of a shift, the
      officer would remove the SD card, take it into police
      headquarters, and transfer the video from the card to a
      database.

            After [Appellant’s] preliminary hearing on February 17,
      2015, [Officer] Brown checked for video of the stop, but there
      was no video. [Officer] Brown [stated that he] does not know
      why there is no video. He could have forgotten to insert the SD
      card at the beginning of his shift, or he could have forgotten to
      remove the card at the end of his shift. Sometimes an SD card
      cracks or “just does not work.” Around the date of the stop,
      [Officer] Brown lost an SD card and had to buy a new one.
      [Officer] Brown has never purposefully kept an SD card out of
      the video system so that a traffic stop would not be recorded.

Suppression Court Opinion (SCO), 7/20/15, at 1-2.

      In Appellant’s motion to suppress, and at the hearing, he argued, inter

alia, “that video of the stop is potentially useful evidence and the

circumstances, including the loss of an SD card around the date of the stop,


                                    -2-
J-S56013-16



show that [the] video was discarded in bad faith.”      Id. at 2.    Appellant

claimed that Officer Brown’s loss of the video amounted to a due process

violation, which he conceded requires proof that the officer’s failure to

produce that evidence “was done in bad faith….” N.T. Suppression Hearing,

5/14/15, at 13.   Ultimately, the suppression court concluded that Officer

Brown’s testimony at the suppression hearing was credible, and that “the

circumstances do not show bad faith.”     SCO at 4.    Accordingly, the court

denied Appellant’s motion to suppress.

      Appellant’s case proceeded to a non-jury trial, at the close of which he

was convicted of the above-stated offenses. On January 5, 2016, Appellant

was sentenced to the term set forth supra.       He filed a timely notice of

appeal, and also timely complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.          Therein,

Appellant raised one issue: “[Appellant] avers that the lower court erred by

denying [Appellant’s] motion to suppress as specified in his motion which

was denied by Opinion and Order of the [court] … on July 17, 2015.”

Pa.R.A.P. 1925(b), 1/15/16.    On February 19, 2016, the trial court filed a

Rule 1925(a) opinion, stating that it was relying on its July 20, 2015 opinion

that accompanied its order denying Appellant’s motion to suppress.

      Herein, Appellant presents one issue for our review: “Did the lower

court err by failing to suppress evidence seized following a vehicle stop for

burned out lights when the officer lost, misplaced or otherwise destroyed the




                                    -3-
J-S56013-16



police car video?”   Appellant’s Brief at 4.   Before addressing Appellant’s

argument, we note our standard of review:

     In reviewing an order from a suppression court, we consider the
     Commonwealth’s evidence, and only so much of the defendant’s
     evidence as remains uncontradicted. We accept the suppression
     court’s factual findings which are supported by the evidence and
     reverse only when the court draws erroneous conclusions from
     those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

     In this case, Appellant contends that the suppression court committed

an error of law by applying a ‘bad faith’ standard in assessing whether

Appellant’s due process rights were violated by Officer Brown’s failure to

produce the video from his patrol car.    In this vein, the suppression court

explained:

     “[B]ad faith is required for a due process violation where merely
     potentially useful evidence is destroyed, no matter how useful to
     the prosecution.” Commonwealth v. Snyder, 963 A.2d 396,
     404 (Pa. 2009). Bad faith is shown where evidence is discarded
     under circumstances “in which the police themselves by their
     conduct indicate that the evidence could form a basis for
     exonerating the defendant.” Arizona v. Youngblood, 488 U.S.
     51, 58 (1988). Here, [Officer] Brown testified that, after the
     preliminary hearing, he checked for video of the stop, but there
     was no video. He testified that he did not know why there was
     no video. [Officer] Brown further testified that, around the time
     of the stop, he lost an SD card and had to buy a new one. The
     [c]ourt finds [Officer] Brown credible, so the circumstances do
     not show bad faith. Since the circumstances do not show bad
     faith, there is no due process violation.

SCO at 4.

     On appeal, Appellant avers that the court’s ‘bad faith’ analysis under

Snyder was inappropriate because in that case, “the Pennsylvania Supreme


                                    -4-
J-S56013-16



Court decided an allegation of [a] federal due process violation….”

Appellant’s Brief at 10 (emphasis added). According to Appellant, he is not

asserting a violation of his federal constitutional rights, but rather, that “his

state constitutional due process rights have been violated by the loss or

destruction of [the] video of his vehicle stop.” Id. Relying on Justice Baer’s

concurring opinion in Snyder, Appellant maintains that Pennsylvania’s due

process clause offers more protection than the federal Constitution, and that

no ‘bad faith’ is necessary to prove a due process violation under our state

Constitution.   See id. at 10 (quoting Snyder, 963 A.2d at 407 (J. Baer

concurring) (acknowledging that “this Court is bound to defer to the United

States Supreme Court's interpretation of federal due process precepts as

enunciated in Illinois v. Fisher, 540 U.S. 544 … (2004),” but stating his

belief “that our interpretation of due process and fundamental fairness in

Commonwealth v. Deans, … 610 A.2d 32 ([Pa.] 1992), was correct, and

[he] would be inclined to consider our analysis in Deans in the context of a

due process argument premised upon the Pennsylvania constitution when

such an argument is properly presented”)).

      We need not delve into the details of Appellant’s state due process

argument, as our careful review of the record demonstrates that he did not

raise this claim before the suppression court.      Specifically, in Appellant’s

written motion to suppress, he stated only that, “[t]here is no Motor Vehicle

Recording from Officer Brown’s police car.” Motion to Suppress, 4/15/15, at

1 ¶ 5.   Appellant did not raise any allegation of a due process violation,

                                      -5-
J-S56013-16



either state or federal.   While a due process claim was raised at the

suppression hearing, defense counsel conceded that the issue was governed

by Snyder, and that a showing of bad faith was required.         In particular,

counsel stated:

     [Defense Counsel:] I believe this would fall under …
     Commonwealth v. Snyder, … that’s a Pennsylvania Supreme
     Court case of 2009 that basically was Pennsylvania’s version of
     Arizona v. Youngblood, which is a United States Supreme Court
     opinion from 1988, 488 U.S. 51, which says, basically, in cases
     where the prosecution has discarded potentially useful evidence,
     a due process violation occurs [if] the Commonwealth’s failure to
     preserve [the evidence] was done in bad faith regardless of
     the centrality to the evidence of the prosecution or defense and
     regardless of whether the evidence was introduced at trial. So
     it’s regardless of whether or not they would have introduced it
     because he still says he saw what he saw.

           And what that does is … [it demonstrates] that [the
     evidence] doesn’t have to be exculpatory, it just has to be
     potentially useful, which I would argue that this is potentially
     useful. And the failure to preserve it has to be in bad faith.
     And that’s difficult to decide but what the Supreme Court said in
     Arizona v. Youngblood is that bad faith is shown where evidence
     is discarded under circumstances in which the police,
     themselves, by their conduct indicate that the evidence could
     form the basis for exonerating the defendant.

           My argument today would [be that] Officer Brown’s
     testimony was that an SD card was lost around this time and he
     couldn’t say what time it was.     I think that that could
     implicate bad faith here.

                                      …

           In this case, if Officer Brown testified that he’s responsible
     for the SD card and it just -- he lost it …. [T]his is a PWID drug
     arrest, [and] the only reason to pull him over would be easily
     shown on that video, [which] I think is something that the
     [c]ourt’s going to have to closely examine to determine whether
     or not that falls under this Snyder case and the progeny of the
     Arizona v. Youngblood case.

                                    -6-
J-S56013-16



N.T. Suppression Hearing at 13-15 (emphasis added).

      It is clear from the record that Appellant did not raise, before the

suppression court, his argument that the Pennsylvania due process clause

does not require a showing of bad faith. Instead, Appellant acknowledged

the applicability of the bad faith standard elucidated in Snyder, and argued

that Officer Brown’s testimony was sufficient to establish that the officer

acted in bad faith by not producing the video.         Because the argument

Appellant presents herein was not raised before the suppression court, it is

waived.   See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). Additionally, we

note that Appellant did not specifically raise his state due process claim in

his boilerplate Rule 1925(b) statement; thus, it is waived on this basis as

well. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”).   Because Appellant offers no other argument in challenging

the court’s denial of his pretrial motion to suppress, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016


                                     -7-
