J-A15044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL J. DOTSKO

                            Appellant                  No. 2580 EDA 2015


            Appeal from the Judgment of Sentence August 4, 2015
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-SA-0000279-2014


BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED AUGUST 09, 2016

        Michael J. Dotsko (“Appellant”) appeals pro se from the judgment of

sentence entered in the Lehigh County Court of Common Pleas following his

conviction for vehicle turning left.1, 2 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On August 8, 2014, at approximately 7:55 p.m., Corporal Roger L. Miller of

the Upper Saucon Township Police Department was stopped at a traffic light

in an unmarked patrol vehicle at the intersection of Oakhurst Drive and

Route 145.      N.T., 8/4/2015, at 24-25.      Corporal Miller observed a grey

____________________________________________


1
    75 Pa.C.S. § 3322.
2
  Appellant was originally represented by counsel, but fired his lawyer on
February 5, 2015. The court granted counsel’s petition to withdraw on
February 25, 2015.
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Honda with a New Jersey license plate across the intersection from him. Id.

at 26. When the light turned green, the Honda turned left while Corporal

Miller was beginning to cross the intersection.    Id.   This forced Corporal

Miller to brake rather abruptly to avoid hitting the car. Id. Corporal Miller

pulled over the vehicle and identified Appellant as the driver.    Id. at 27.

Corporal Miller had a camera on his vehicle (“dash cam”) at the time. 3 Id. at

29.

       On October 13, 2014, after a hearing, District Justice Daniel Trexler

found Appellant guilty of vehicle turning left.      On October 20, 2014,

Appellant appealed to the Lehigh County Court of Common Pleas.             On

August 4, 2015, the court conducted a trial, in which Corporal Miller

testified, the dash cam recording was admitted into evidence, and Chief

Robert Coyle testified that he downloaded the video footage recorded from

the dash cam. The court found Appellant guilty of vehicle turning left and

sentenced him to pay the costs of prosecution, a $25.00 fine and a $10.00

EMS fine.




____________________________________________


3
  The dash cam was designed so that it constantly recorded, then deleted
video after 30 seconds had passed, unless the officer activated his
emergency lights. This feature allowed Corporal Miller to save the recorded
video of Appellant from 30 seconds before he activated his lights and
onward. N.T., 8/4/2015, at 29.



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       On August 27, 2015, Appellant filed a timely notice of appeal.     The

court did not order, and Appellant did not file, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       Appellant raises the following issues for our review:

          1. DID THE COMMONWEALTH FAIL TO PRESENT
          SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE
          DOUBT THAT THE APPELLANT WAS GUILTY OF VIOLATING

          “VEHICLE TURNING LEFT” GIVEN THAT:

              A. THE FIRST TWENTY-FIVE SECONDS OF THE
              COMMONWEALTH’S OWN VIDEO DO NOT SHOW
              [APPELLANT], HIS VEHICLE’S FRONT LICENSE PLATE
              OR HIS VEHICLE’S OTHERWISE HIGHLY VISIBLE
              ORANGE AND WHITE STATE OF NEW JERSEY
              WINDSHIELD INSPECTION STICKER?

              B. THE SCREEN SHOT TAKEN OF THE ONE AND ONLY
              FRAME OF THE COMMONWEALTH’S VIDEO IN WHICH
              A FRONT LICENSE PLATE IS PARTIALLY LEGIBLE
              ESTABLISHES THAT IT IS NOT [APPELLANT’S]
              LICENSE PLATE?

              C. THE APPELLANT TESTIFIED AT LENGTH AS TO
              SOME OF THE DIFFERENCES BETWEEN THAT WHICH
              IS DEPICTED IN THE FIRST TWENTY-FIVE SECONDS
              OF THE VIDEO AND THAT WHICH ACTUALLY
              OCCURRED.

          2. DID THE TRIAL COURT ABUSE ITS DISCRETION IN
          DENYING [] APPELLANT’S BRADY[4] MOTION TO PERMIT
          HIS EXPERT TO OBTAIN THE UNCOMPRESSED VERSION
          OF THE POLICE VIDEO, THUS EFFECTIVELY DENYING
          APPELLANT’S USE OF HIS RETAINED EXPERT?
____________________________________________


4
  Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).




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Appellant’s Brief at 2-3.

      In his first issue, Appellant challenges the sufficiency of the evidence

for his conviction. He claims that he is innocent of the charges against him,

and that the video was fabricated and does not show his vehicle. His issue

merits no relief.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in 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 fact 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 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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      Appellant was convicted for violating the following statute:


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         § 3322. Vehicle turning left

         The driver of a vehicle intending to turn left within an
         intersection or into an alley, private road or driveway shall
         yield the right-of-way to any vehicle approaching from the
         opposite direction which is so close as to constitute a
         hazard.

75 Pa.C.S. § 3322.

      Appellant’s challenge to the sufficiency of the evidence is devoid of

merit.   Corporal Miller’s testimony alone, even without the corroborative

video, supports the trial court’s finding that Appellant turned left into an

intersection without yielding to Corporal Miller, who was proceeding straight

across the intersection.

      Viewing all the evidence admitted at trial in the light most favorable to

the Commonwealth, there is sufficient evidence to enable the fact-finder to

find every element of the crime “vehicle turning left” beyond a reasonable

doubt, and the lack of clarity in the dash cam pictures does not render the

evidence insufficient.

      Next, Appellant argues the trial court abused its discretion by denying

his “Motion to Compel Commonwealth to Produce Exculpatory Material

Pursuant to Brady v. Maryland.” He claims he needed an uncompressed

Audio Video Interleave (AVI) format straight from the original recording so

that his expert could conduct a forensic video examination to determine the

authenticity of the video, but that he received instead a video object file

(VOB) that did not contain all the data of the AVI.



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      Whether to grant a motion to compel discovery is within the discretion

of the trial court:


         Rule 573. Pretrial Discovery and Inspection

                                  *    *     *

         (B) Disclosure by the Commonwealth.

                                 *     *     *

         (2) Discretionary With the Court.

         (a) In all court cases, except as otherwise provided in
         Rules 230 (Disclosure of Testimony Before Investigating
         Grand Jury) and 556.10 (Secrecy; Disclosure), if the
         defendant files a motion for pretrial discovery, the court
         may order the Commonwealth to allow the defendant’s
         attorney to inspect and copy or photograph any of the
         following requested items, upon a showing that they are
         material to the preparation of the defense, and that the
         request is reasonable:

                                 *     *     *

         (iv) any other evidence specifically identified by the
         defendant, provided the defendant can additionally
         establish that its disclosure would be in the interests of
         justice.

Pa.R.Crim.P. 573.

      Here, the court did not abuse its discretion by denying Appellant’s

motion to compel the Commonwealth to produce a different version of the

video he already had.     The record reflects that Appellant wrote several

letters to the district attorney and the chief of police to obtain the video.

Assistant District Attorney Sarah Heimbach (“the ADA”) sent Appellant 2

DVDs on February 5, 2015. In response to his letter in which he indicated



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he could not play the DVDs on his computer, the ADA wrote him a letter

advising him to play them through “VLC media player” and offered for him to

come to the district attorney’s office to play the DVDs, because she knew

that they played on their computers.

        Appellant was eventually able to play the DVD.     The court did not

abuse its discretion in not compelling the police department to supply him

with an AVI copy, especially considering that it did not know if it had such a

copy.    Further, Appellant only wanted this version to explore his theory

about how the police department essentially framed him for something he

did not do. Corporal Miller’s testimony alone would have been sufficient to

support Appellant’s conviction.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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