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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                            Appellee         :
                                             :
                    v.                       :
                                             :
STEPHANIE ANN BUDIHAS,                       :
                                             :
                            Appellant        :     No. 3116 EDA 2013


              Appeal from the Judgment of Sentence April 5, 2013
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0003745-2012

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED OCTOBER 17, 2014

        Appellant, Stephanie Ann Budihas, appeals from the judgment of

sentence entered in the Northampton County Court of Common Pleas

following a bench trial and convictions for driving under the influence-high

rate of alcohol1 and failure to stop at a red light.2         Appellant claims her

constitutional rights to a fair trial and due process were violated because a

dash camera video of the traffic stop should have been preserved by the

Commonwealth. We affirm.

        We state the facts as set forth by the trial court:

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(b).
2
    75 Pa.C.S. § 3112(a)(3)(i).
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         [The lower court] held a bench trial on March 5, 2013. At
         trial, [the court] heard testimony from Joshua Schnalzer, a
         police officer employed by the City of Bethlehem. Officer
         Schnalzer testified he observed Appellant’s vehicle
         accelerate “faster than a normal car would” and weaving
         within the right lane of travel. Further, Office Schnalzer
         testified he observed Appellant’s vehicle stopped at a red
         light next to two individuals on the sidewalk and continued
         to remain stopped through a green cycle on the light. The
         signal turned red again and it was at that point that the
         Appellant made a right turn at the intersection, which was
         marked “No Turn on Red” with two signs.              Officer
         Schnalzer then followed the vehicle and had to speed up to
         keep up with the vehicle which was driving relatively
         quickly.

Trial Ct. Op., 1/31/14, at 4-5 (citations omitted). Officer Schnalzer initiated

a traffic stop, approached Appellant’s vehicle, and noticed Appellant smelled

of alcohol and had slightly glassy eyes. The officer had Appellant perform

field sobriety tests, which she failed.    Appellant eventually underwent a

blood test, which revealed a blood alcohol content of .14%.

      The officer’s police car had a video recording system that does not

automatically activate when the emergency lights are on. N.T. Trial, 3/5/13,

at 85. The decision whether to activate the video recorder lies within the

officer’s discretion. Id. Once a video is recorded, the officer must request

the police department to download and preserve the video or it will

eventually be overwritten. Id. at 85. In the instant case, the officer did not

activate the video recording system or make a request to preserve any

video. Id. at 85-86. Officer Schnalzer testified that the police department

typically does not preserve the tape when there is substantial evidence to



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proceed without the tape because of the burdensome process of preserving

the tape. Id. at 98.

      Prior to trial, Appellant requested a copy of any video or audio

recording depicting the motor vehicle stop.     The Commonwealth notified

Appellant that no such recording existed.    A bench trial ensued, at which

Appellant was found guilty of the above charges. On April 5, 2013, the court

sentenced Appellant to thirty days to six months’ imprisonment.

      On April 12, 2013, Appellant filed a motion for arrest of judgment or a

new trial. On May 6, 2013, the court denied that motion but its order did

not notify Appellant of her appellate rights.   On May 16, 2013, Appellant

filed a motion for reconsideration of sentence, which the court denied on

October 15, 2013. Appellant filed a notice of appeal on November 13, 2013.

Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      As a prefatory matter, we examine the timeliness of this appeal.

Pennsylvania Rule of Criminal Procedure 720 governs when a notice of

appeal should be filed after disposition of a post-sentence motion:

            (A) Timing.

            (1) Except as provided in paragraphs (C) and (D), a
         written post-sentence motion shall be filed no later than 10
         days after imposition of sentence.

            (2) If the defendant files a timely post-sentence motion,
         the notice of appeal shall be filed:

               (a) within 30 days of the entry of the order deciding
            the motion;



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              (b) within 30 days of the entry of the order denying
           the motion by operation of law in cases in which the
           judge fails to decide the motion; or

              (c) within 30 days of the entry of the order
           memorializing the withdrawal in cases in which the
           defendant withdraws the motion.

Pa.R.Crim.P. 720(A)(1)-(2).   Thus, a notice of appeal must be filed within

thirty days of the order denying a post-sentence motion. Id.

     Rule 720 also governs the contents of the post-sentence motion:

           (B) Optional Post-Sentence Motion.

           (1) Generally.

              (a) The defendant in a court case shall have the right
           to make a post-sentence motion. All requests for relief
           from the trial court shall be stated with specificity and
           particularity, and shall be consolidated in the post-
           sentence motion, which may include:

                  (i) a motion challenging the validity of a plea of
               guilty or nolo contendere, or the denial of a motion
               to withdraw a plea of guilty or nolo contendere;

                 (ii) a motion for judgment of acquittal;

                 (iii) a motion in arrest of judgment;

                 (iv) a motion for a new trial; and/or

                 (v) a motion to modify sentence.

Pa.R.Crim.P. 720(B)(1)(a)(i)-(v).

     Finally, the order denying a post-sentence motion must conform to

Rule 720(B)(4)(a):

           (4) Contents of Order. An order denying a post-
        sentence motion, whether issued by the judge pursuant to


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         paragraph (B)(3)(d) or entered by the clerk of courts
         pursuant to paragraph (B)(3)(c), or an order issued
         following a defendant’s withdrawal of the post-sentence
         motion, shall include notice to the defendant of the
         following:

               (a) the right to appeal and the time limits within
             which the appeal must be filed . . . .

Pa.R.Crim.P. 720(B)(4)(a).    “This requirement ensures adequate notice to

the defendant, which is important given the potential time lapse between the

notice provided at sentencing and the resolution of the post-sentence

motion.” Id. cmt.; accord Commonwealth v. Patterson, 940 A.2d 493,

499 (Pa. Super. 2007).

      Instantly, Appellant, after the court denied her post-sentence motion

on May 6, 2013, had thirty days within which to file a notice of appeal. See

Pa.R.Crim.P. 720(A)(1)-(2).     Appellant, however, then filed a motion for

reconsideration of her sentence on May 16, 2013, and did not file a timely

notice of appeal.    See Pa.R.Crim.P. 720(B)(1)(a)(i)-(v) (stating that all

requests for relief must be in post-sentence motion).

      We decline to find Appellant filed an untimely appeal because the trial

court failed to comply with Rule 720(B)(4)(a) in its May 6, 2013 order. See

Pa.R.Crim.P. 720(B)(4)(a). The Patterson Court’s observations aptly apply

instantly:

              In our view, the trial court’s failure to comply with Rule
         720 constitutes a breakdown that excuses the untimely
         filing of Appellant’s notice of appeal. . . . Foremost, the
         use of the word “shall” in Rule 720(B)(4)(a) evinces the
         mandatory        nature      of     the     notification.  See


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            Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.
            Super. 2007) (stating “shall” evinces a mandatory
            obligation). Second, the Comment to the Rule clearly
            states that Rule 720(B)(4) serves a distinct purpose from
            Rule 704, namely, to ensure adequate notice to the
            defendant given the routine delay between the sentencing
            and the disposition of the post-sentence motion.

Patterson, 940 A.2d at 499. Accordingly, we excuse Appellant’s untimely

appeal from her judgment of sentence. See id.

      Appellant raises the following issue on appeal:

            Does the Sixth Amendment right to a fair trial and the due
            process clause of the Fourteenth Amendment require that
            a dash cam video produced in connection with a DUI stop
            be preserved as material evidence?

Appellant’s Brief at 4.

      We summarize Appellant’s argument for her sole issue.           She insists

that the best evidence of the stop was the video recording.            Appellant

suggests that the video would have been exculpatory and negate any need

by the fact-finder to weigh credibility.      She couches her argument as a

violation    of   both   Brady   v.   Maryland,   373   U.S.   83   (1963),   and

Commonwealth v. Snyder, 963 A.2d 396 (Pa. 2009), because her

constitutional rights to a fair trial and due process were violated when the

Commonwealth did not preserve and produce the video recording. We hold

Appellant has not established entitlement to relief.

      With respect to whether Brady applies to a particular factual scenario,

the standard of review is de novo, as it is a question of law.




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             Under Brady, the prosecution’s failure to divulge
          exculpatory evidence is a violation of a defendant’s
          Fourteenth Amendment due process rights. “[T]o establish
          a Brady violation, a defendant is required to demonstrate
          that exculpatory or impeaching evidence, favorable to
          the defense, was suppressed by the prosecution, to the
          prejudice of the defendant.”

             The burden of proof is on the defendant to demonstrate
          that the Commonwealth withheld or suppressed evidence.
          . . . Similarly, this Court has limited the prosecution’s
          disclosure duty such that it does not provide a general
          right of discovery to defendants. . . .

Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009) (emphases added

and citations omitted).   In Cam Ly, the Commonwealth failed to disclose

that a witness identified a different person as the culprit, and our Supreme

Court held the prior identification related to that witness’s credibility. Id. at

76, 78.   The Commonwealth also failed to produce a police log stating an

unnamed informant identified a third party as the perpetrator, which the

Cam Ly Court categorized as exculpatory evidence.          Id. at 79-80.     The

Court, however, declined to grant relief for other reasons. Id.

      In Snyder, our Supreme Court held that Illinois v. Fisher, 540 U.S.

544 (2004), applied to Pennsylvania:

          [T]he [Fisher] Court held due process did not require
          dismissal of charges where the police destroyed evidence
          of tests performed on cocaine during the ten years the
          defendant was a fugitive: even though the test results
          were submitted into evidence and constituted a central
          component of the prosecution’s case, the evidence was
          only potentially useful to the defendant and it had not
          been destroyed in bad faith.           The [Fisher] Court
          reaffirmed that the critical distinction for purposes of the
          Constitutional right to preservation of evidence was


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         between “potentially useful evidence”—evidence “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,” . . . and “materially
         exculpatory evidence.” The [Fisher] Court [held] “the
         applicability of the bad-faith requirement . . . depended
         not on the centrality of the contested evidence to the
         prosecution’s case or the defendant’s defense, but on the
         distinction between ‘materially exculpatory’ evidence and
         ‘potentially useful’ evidence.”

            [E]ven where destroyed evidence is central to the
         prosecution’s case, a defendant must show bad faith . . . .

Snyder, 963 A.2d at 403-04 (citations omitted). Thus, the Snyder Court

established the following analytical framework:

         First, we must determine whether the [evidence at issue
         was] “materially exculpatory” or “potentially useful.” We
         recognize this is a “treacherous task,” requiring a court to
         “divin[e] the import of materials whose contents are
         unknown and, very often, disputed.” Accordingly, we have
         required support for an allegation that destroyed evidence
         was exculpatory, holding it cannot be based on a “mere
         assertion.”

Id. at 405 (citations omitted). “While it is very unlikely we could find bad

faith where [potentially useful evidence is] destroyed pursuant to standard

procedure, evidence destroyed outside a standard procedure is not ipso facto

destroyed in bad faith.” Id. at 406 (citation omitted).

      Instantly, we agree with the trial court that Appellant did not

demonstrate that the video ever existed.          See, e.g., N.T. Trial at 85-86.

The Commonwealth notified Appellant that no such video existed and

Appellant   did   not   refer   the   trial   court   to   any   evidence   that   the

Commonwealth’s notification was erroneous. See Cam Ly, 980 A.2d at 75.


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Furthermore, even if such a video existed, we agree with the trial court that

Appellant failed to demonstrate that the video was materially exculpatory,

let alone the Commonwealth withheld or suppressed it. See Cam Ly, 980

A.2d at 75; Snyder, 963 A.2d at 405. Moreover, assuming the video was

potentially useful, we also agree with the trial court that Appellant did not

establish bad faith because it was not preserved as a matter of standard

procedure. Cf. Snyder, 963 A.2d at 402, 406 (holding determination of bad

faith unlikely when potentially useful evidence destroyed pursuant to

standard procedure). Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/17/2014




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