J-S83034-16

                                  2017 PA Super 7

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                      Appellant             :
                                            :
                      v.                    :
                                            :
LEROY DEPREE WILLIAMS,                      :
                                            :
                      Appellee              :       No. 526 WDA 2016

                   Appeal from the Order March 17, 2016,
               in the Court of Common Pleas of Erie County,
            Criminal Division at No(s): CP-25-CR-0003213-2015

BEFORE:    FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                FILED JANUARY 12, 2017

      The Commonwealth of Pennsylvania appeals from an order that

precluded the Commonwealth from introducing at trial any testimony

describing the content of lost surveillance video footage relating to the

break-in of a pizza shop, for which the Commonwealth charged Leroy

Depree Williams (Appellee) with various offenses.1 Upon review, we reverse

and remand for further proceedings.

      The trial court set forth the background underlying this matter as

follows.

            On    September 20, 2015, [Appellee] was charged with
      burglary,   criminal trespass, and criminal mischief for allegedly
      breaking    the front window of Empire Pizza, crawling in and
      smashing    the register before fleeing empty-handed. No one was


1
  The Commonwealth has certified that the order at issue will terminate or
substantially handicap the prosecution, making this an interlocutory appeal
as of right under Pa.R.A.P. 311(d).

*Retired Senior Judge assigned to the Superior Court.
J-S83034-16


      present at the time, but the business was equipped with video
      cameras that captured the break-in, including footage of the
      perpetrator.

            Shortly after the break[-]in, the police and Amar [Jasarevic
      (Jasarevic)2], the proprietor of Empire Pizza, arrived at the shop
      and watched the surveillance video. Based on what he saw,
      Officer Sweeney believed [Appellee] was responsible for the
      break[-]in. Officer Sweeney asked … Jasarevic to make a copy
      of the video for the police and left to pursue [Appellee].

            When … Jasarevic attempted to make a copy of the video,
      the original footage of the burglary was lost such that no copies
      could be made. As a result, [Appellee] is precluded from seeing
      the video that Officer Sweeney and … Jasarevic viewed before
      the footage was lost.       This information was subsequently
      provided to [Appellee].

            On January 20, 2016, [Appellee] filed [a motion to dismiss
      the charges against him based upon (1) a violation of the best
      evidence rule,3 and (2) the spoliation of evidence resulting in
      prejudice against him.] An evidentiary hearing was held on
      [Appellee’s] motion on February 26, 2016 during which the
      Commonwealth adduced the testimony of Officer Sweeney and …
      Jasarevic.

Trial Court Opinion (TCO), 3/17/2016, at 1-2 (unnecessary capitalization

omitted).



2
 In its opinion, the trial court misspells “Jasarevic” as “Jarasevic.” We have
corrected the error throughout this opinion when quoting from the trial court
opinion.
3
  The “best evidence rule” provides that “[a]n original writing, recording, or
photograph is required in order to prove its content unless these rules, other
rules prescribed by the Supreme Court, or a statute provides otherwise.”
Pa.R.E. 1002. Pertinent to this appeal, pursuant to Pa.R.E. 1004(a), “[a]n
original is not required and other evidence of the content of a writing,
recording, or photograph is admissible if[] all the originals are lost or
destroyed, and not by the proponent acting in bad faith.”


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J-S83034-16


     Following    the     hearing,   the   trial   court   issued   an   order    and

accompanying opinion concluding that there was no violation of the best

evidence rule “because the proponent of the evidence was not acting in bad

faith when the original video footage was lost.” Id. at 2-3. Nevertheless,

the trial court concluded that the video evidence “could … be materially

exculpatory” and that, because Appellee had been permanently deprived of

the opportunity to view the video, allowing testimony of its content would

result in a fundamentally unfair trial.       Id. at 3-4.     Thus, the trial court

suppressed any testimony regarding the content of the video. This appeal

followed.

     On     appeal,     the   Commonwealth         presents   one   issue   for   our

consideration: “Whether the lower court erred as a matter of law or abused

its discretion by finding that any testimony regarding the content of the

surveillance video must be suppressed.” Commonwealth’s Brief at 3.

     We begin with our well-settled standard of review.

          When the Commonwealth appeals from a suppression
          order, we follow a clearly defined standard of review and
          consider only the evidence from the defendant’s witnesses
          together with the evidence of the prosecution that, when
          read in the context of the entire record, remains
          uncontradicted. The suppression court’s findings of fact
          bind an appellate court if the record supports those
          findings. The suppression court’s conclusions of law,
          however, are not binding on an appellate court, whose
          duty is to determine if the suppression court properly
          applied the law to the facts.




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J-S83034-16


     Our standard of review is restricted to establishing whether the
     record supports the suppression court’s factual findings;
     however, we maintain de novo review over the suppression
     court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016)

(internal quotation marks and citations omitted).

     With respect to a defendant’s access to evidence, our Supreme Court

has explained that

     the Due Process Clause of the Fourteenth Amendment requires
     defendants be provided access to certain kinds of evidence prior
     to trial, so they may “be afforded a meaningful opportunity to
     present a complete defense.”        This guarantee of access to
     evidence requires the prosecution to turn over, if requested, any
     evidence which is exculpatory and material to guilt or
     punishment, see Brady[ v. Maryland, 373 U.S. 83, 83 S.Ct.
     1194, 10 L.Ed.2d. 215 (1963),] and to turn over exculpatory
     evidence which might raise a reasonable doubt about a
     defendant’s guilt, even if the defense fails to request it, see
     United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49
     L.Ed.2d 342 (1976). If a defendant asserts a Brady or Agurs
     violation, he is not required to show bad faith.

           There is another category of constitutionally guaranteed
     access to evidence, which involves evidence that is not
     materially exculpatory, but is potentially useful, that is destroyed
     by the state before the defense has an opportunity to examine
     it. When the state fails to preserve evidence that is “potentially
     useful,” there is no federal due process violation “unless a
     criminal defendant can show bad faith on the part of the police.”
     Potentially useful evidence is that 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.” In evaluating a
     claim that the Commonwealth’s failure to preserve evidence
     violated a criminal defendant’s federal due process rights, a
     court must first determine whether the missing evidence is
     materially exculpatory or potentially useful.




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J-S83034-16


Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (some

citations omitted).4

      Here, in suppressing any testimony regarding the content of the

surveillance video, the trial court reasoned as follows.

             The surveillance video purportedly captured the identity of
      the perpetrator of the break-in at Empire Pizza.              The
      Commonwealth seeks to introduce the content of the video
      through the testimony of Officer Sweeney and … Jasarevic. At a
      minimum, Officer Sweeney would testify the perpetrator in the
      video is [Appellee]. Just as this evidence could be materially
      inculpatory, so too could it be materially exculpatory. Having
      been permanently deprived of the opportunity to view the video,
      [Appellee] is precluded from any materially exculpatory evidence
      in it.

            To allow testimony of the content of the video when
      [Appellee] will never have the opportunity to view the video
      would result in a trial that is fundamentally unfair. [Appellee]
      would have no factual basis on which to cross examine either
      Officer Sweeney or … Jasarevic about their observations.
      [Appellee] would be relegated to speculation in mounting any
      defense to the video, where the Commonwealth would stand on
      firm ground. Under these circumstances, there is irreparable

4
  We question whether the above due-process analysis even applies in this
case, given that Jasarevic, and not the police, destroyed the video evidence
at issue. Nevertheless, we refrain from offering any analysis in this regard,
as neither the parties nor the trial court addresses this issue. See
Chamberlain, 30 A.3d at 404 n.7 (“[Chamberlain] has not provided any
argument regarding whether the destruction of evidence by the coroner,
who is not a police officer, should be treated in the same manner as the
destruction of evidence by police. For purposes o[f] our discussion, we will
assume that it should.”); see also Commonwealth v. Colavita, 993 A.2d
874, 891 (Pa. 2010) (“This Court has consistently held that an appellate
court cannot reverse a trial court judgment on a basis that was not properly
raised and preserved by the parties. Where the parties fail to preserve an
issue for appeal, the Superior Court may not address that issue sua sponte.
The rule is no different in the constitutional context.” (internal quotation
marks and citations omitted)).


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J-S83034-16


      prejudice in depriving [Appellee] of a meaningful opportunity to
      present a defense.

            A criminal trial cannot proceed when the defendant begins
      at such a disadvantage that the resulting trial is fundamentally
      unfair. Accordingly, any testimony regarding the content of the
      surveillance video must be suppressed.

TCO, 3/17/2016, at 3-4 (citation omitted).

      On appeal, the Commonwealth argues that “[t]he observations of

Officer Sweeney and … Jasarevic cannot be suppressed under a due process

violation because the video is only potentially useful for … Appellee and the

police did not act in bad faith in its destruction.” Commonwealth’s Brief at 9.

Specifically, the Commonwealth contends that Appellee’s argument at the

hearing that “had [he] had the opportunity to … review the [video

surveillance], [he] may have found something … that could help at trial,”

and the trial court’s observation that the evidence “could … be materially

exculpatory,” demonstrate that the evidence is not materially exculpatory,

but only potentially useful. Id. at 9-10. The Commonwealth further argues

that Appellee and the trial court relied improperly on speculation and

conjecture herein because there is nothing in the record to indicate that the

video is exculpatory.   Id. at 10.   Finally, the Commonwealth argues that

because the video is only potentially useful, Appellee had to show bad faith

on the part of the police, and he failed to do so as demonstrated by the

circumstances and determined by the trial court. Id.




                                     -6-
J-S83034-16


      Upon review, we agree with the Commonwealth that the evidence at

issue is not materially exculpatory.    Appellee’s claim that the video “may

have” something that could be helpful to him at trial (i.e., may show that the

identity of the perpetrator was not Appellee), and the trial court’s

determination that the video “could … be materially exculpatory” is purely

speculative, which does not establish materiality. See Commonwealth v.

Spotti, 94 A.3d 367, 383 (Pa. Super. 2014) (en banc) (rejecting Spotti’s

claim that a video recording was materially exculpatory because it “may

have provided evidence regarding whether [a third party] was operating his

vehicle in a dangerous manner,” explaining that Spotti’s “assertion can never

be verified because the recording does not exist and no evidence

contradicts, or could otherwise be seen to impeach, [the officer’s] testimony

regarding the content of the recording.       Thus, [Spotti’s] claim that the

recording may have depicted [the third party] engaging in unsafe driving is

purely speculative.   The ‘mere possibility’ that the recording ‘might have’

depicted events differently does not establish ‘materiality.’”).

      Since the video evidence herein was only potentially useful, Appellee

was required to show that the Commonwealth acted in bad faith in failing to

preserve it. See Chamberlain, 30 A.3d at 402 (“Evidence that is possibly

exculpatory is only merely potentially useful, the loss of which, … creates a

constitutional deprivation only if the Commonwealth acted in bad faith.”)

(citation omitted).   Albeit in the context of its analysis under the best



                                      -7-
J-S83034-16


evidence rule, the trial court concluded that the Commonwealth did not act

in bad faith in failing to preserve the video evidence:

      At the preliminary hearing, … Jasarevic told Officer Sweeney he
      inadvertently erased the video when he attempted to burn the
      police a copy. At the evidentiary hearing, … Jasarevic testified
      he discovered the hard drive malfunctioned and the footage was
      deleted when he tried to make a copy for the police. In either
      scenario, the loss of the original footage was not done in bad
      faith particularly since it was in the best interest of … Jasarevic
      to preserve a video of the burglary in progress and the burglar.

             [Appellee] argues the police should have secured the video
      prior to leaving the scene by taking the entire video surveillance
      system.     This argument is unpersuasive.        Officer Sweeney
      routinely asks for a copy of a surveillance video and never, in his
      many years of experience, has taken an entire surveillance
      system to secure a video recording. As a practical matter, given
      the fact a violent burglary had just occurred, with the front
      window smashed in, it was understandable why … Jasarevic
      would want to keep the security system in place.

TCO, 3/17/2016, at 2-3.      The trial court’s findings are supported by the

testimony of Jasarevic and Officer Sweeney, N.T., 2/2/6/2016, at 7-11, 13,

16-19, and we agree with the trial court’s determination that the

Commonwealth did not act in bad faith in failing to preserve the video

evidence.

      Thus, because the lost surveillance video footage was only potentially

useful and the police did not act in bad faith in failing to preserve it, we

conclude that the trial court erred in suppressing testimony relating to the

contents of the video. Accordingly, we reverse the order of the trial court

and remand for further proceedings consistent with this opinion.




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J-S83034-16


     Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2017




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