J-A32029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

JOEL LAMB,

                         Appellee                       No. 797 EDA 2014


               Appeal from the Order Entered February 6, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0006471-2013

BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED JANUARY 26, 2015

     The Commonwealth of Pennsylvania appeals from the order entered on

February 6, 2014, granting Appellee, Joel Lamb’s, motions to suppress and

dismiss. We reverse and remand.

     The factual background of this case is as follows. On June 30, 2013,

Pennsylvania State Police Troopers Edward Theodore and Andrew Hearn

were using a radar gun to monitor vehicles’ speeds on Route 313.               The

speed limit for that location was 55 miles per hour. Troopers Theodore and

Hearn   clocked   Appellee   traveling   65   miles   per   hour   at   3:07   a.m.

     Trooper Theodore pulled behind Appellee and followed him for

approximately one-half mile. During that time, Appellee never left his lane

of travel nor did he violate any other provision of the Motor Vehicle Code

(other than speeding).    Trooper Theodore proceeded to pull Appellee over



* Former Justice specially assigned to the Superior Court.
J-A32029-14


for the speeding violation.      As he approached Appellee’s vehicle, Trooper

Theodore recognized the scents of cigar smoke and alcohol emanating from

the vehicle. Appellee informed Trooper Theodore that he was a bartender

and was coming home from work. He denied that he had been drinking.

      Trooper Theodore noticed that Appellee’s eyes were bloodshot and

glassy. Trooper Theodore asked Appellee to take a portable breath test to

confirm that he had not been drinking. Although Appellee eventually agreed

to submit to the test, he did not blow a sufficient amount of air when given

the test. Trooper Theodore thereafter asked Appellee to exit the vehicle.

      When Appellee exited the vehicle, he had some problems with his

balance.    Trooper Theodore also realized that the smell of alcohol was

emanating from Appellee’s person, and not his vehicle.      Trooper Theodore

then conducted the horizontal gaze nystagmus (“HGN”) field sobriety test

(“FST”).1   Appellee failed at all three attempts to perform the HGN test.

Specifically, Appellee followed the object with his whole head each time.

Furthermore, his eyes did not follow the object smoothly and, when his

pupils reached the corners of his eyes, they jerked. Trooper Theodore then

requested Appellee perform the heel-to-toe test.2 Appellee began the test




1
 This test requires that an individual follow an object with his eyes while not
moving his head.
2
   This test requires that an individual walk nine steps heel-to-toe along a
line, turn, and walk back in the same manner. Although Appellee told
(Footnote Continued Next Page)


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before directed; had several steps that were not heel-to-toe; took only eight

steps going from his original starting position; took an incorrect turn; and

took ten steps on his return journey.

        Trooper Theodore next requested that Appellee perform the one-

legged stand.3 During his first attempt, Appellee used the car for balance.

During his second attempt, he was unable to keep his foot raised. Trooper

Theodore again requested Appellee take a portable breath test.       Although

Appellee did not blow enough air into the machine for an accurate reading,

Trooper Theodore used the manual function of the machine to get a blood

alcohol content reading of .07. Thereafter, Appellee was placed under arrest

for suspicion of driving under the influence of alcohol.

        The relevant procedural history of this case is as follows. On October

24, 2013, Appellee was charged via criminal information with driving under

the influence – general impairment,4 driving under the influence – high rate

of alcohol,5 and speeding.6           On November 13, 2013, Appellee filed an

                       _______________________
(Footnote Continued)
Trooper Theodore that he had an old ankle injury, he stated that it would not
impact his ability to perform the heel-to-toe test.
3
  This test requires that an individual stand on one leg with his hands to his
side. See also note 2, supra.
4
    75 Pa.C.S.A. § 3802(a)(1).
5
    75 Pa.C.S.A. § 3802(b).
6
    75 Pa.C.S.A. § 3362(a)(2).




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omnibus pretrial motion, which included a motion to dismiss for destruction

of evidence.    In particular, it was revealed that Trooper Theodore’s

dashboard camera recording had been destroyed.           Appellee’s omnibus

pretrial motion also included a motion to suppress the evidence because of

an alleged lack of reasonable suspicion to pull Appellee over for driving

under the influence. A combined evidentiary hearing was held on February

6, 2014. At the conclusion of the hearing, the trial court granted Appellee’s

motion to dismiss and, in the alternative, granted Appellee’s motion to

suppress. This timely appeal followed.7

     The Commonwealth presents two questions for our review:

     1. [Did the trial court err in granting Appellee’s motion to
        dismiss based upon destruction of Trooper Theodore’s
        dashboard camera recording?

     2. Did the trial court err in alternatively granting Appellee’s
        motion to suppress all evidence based upon an alleged
        violation of Appellee’s right to be free from unreasonable
        searches and seizures?]

Commonwealth’s Brief at 4.

     The Commonwealth contends that the trial court erred in granting

Appellee’s motion to dismiss.    In his motion, Appellee argued that the


7
  On March 6, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On March 10, 2014, the Commonwealth filed its
concise statement. On April 16, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in the Commonwealth’s
concise statement.




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Commonwealth violated his due process rights in failing to preserve the

dashboard camera recording.      “The decision to grant a pretrial motion to

dismiss a criminal charge is vested in the sound discretion of the trial court

and may be overturned only upon a showing of abuse of discretion or error

of law.”   Commonwealth v. Totaro, 2014 WL 6790441, *2 (Pa. Super.

Dec. 3, 2014) (citation omitted).

      Our Supreme Court summarized the relevant legal principles that

govern a prosecutor’s obligation to avoid the suppression or loss of

exculpatory evidence consistent with the Due Process Clause of the United

States Constitution, as interpreted in Brady v. Maryland, 373 U.S. 83

(1963). Our Supreme Court explained:

      In Brady, the [Supreme Court of the United States] held that
      the suppression by the prosecution of evidence favorable to an
      accused upon request violates due process where the evidence is
      material either to guilt or to punishment, irrespective of the good
      faith or bad faith of the prosecution. This Court has held that to
      prove a Brady violation, the defendant has the burden of
      demonstrating that: (1) the prosecutor has suppressed
      evidence; (2) the evidence, whether exculpatory or impeaching,
      is helpful to the defendant, and (3) the suppression prejudiced
      the defendant. Prejudice is demonstrated where the evidence
      suppressed is material to guilt or innocence. Further, favorable
      evidence is material, and constitutional error results from its
      suppression by the government, if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different. A
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome.

Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (internal

quotation marks and citations omitted).



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      A different rule applies where the Commonwealth fails to preserve

evidence that is potentially useful, as opposed to materially exculpatory.

In cases where the prosecution has discarded potentially useful evidence, a

due process violation occurs only where the Commonwealth’s failure to

preserve was done in bad faith, regardless of the centrality of the evidence

for the prosecution or defense and regardless of whether the evidence was

introduced at trial.   Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa.

2009). Where the constitutional right to preservation of evidence is at issue,

the Supreme Court of the United States has distinguished “material

exculpatory evidence” from “potentially useful evidence” as follows:

      The Due Process Clause of the Fourteenth Amendment, as
      interpreted in Brady, makes the good or bad faith of the State
      irrelevant when the State fails to disclose to the defendant
      material exculpatory evidence. But we think 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
      [,i.e. so-called “potentially useful evidence”].

Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (emphasis added). 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.” Id. at 58.

      In this case, Appellee admits that he is unable to prove that the

Commonwealth acted in bad faith in destroying the recording.       He argues

instead that the recording was materially exculpatory evidence and,



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therefore, whether the police acted with bad faith is immaterial when

determining if his right to due process was violated. The trial court agreed

and found that the recording was materially exculpatory for two reasons.

First, it found that the recording would show whether Appellee committed

any traffic violations after Trooper Theodore pulled behind him that would

indicate he was possibly intoxicated.   Second, it found that the recording

was the only way to show whether Appellee had passed the FSTs

administered by Trooper Theodore.

     The Commonwealth contends that the evidence was not materially

exculpatory as the recording would not definitely show whether Appellee

passed all of the FSTs given by Trooper Theodore.         Furthermore, the

Commonwealth argues that the recording was immaterial to the reasonable

suspicion analysis as Trooper Theodore’s observation of Appellee speeding

was sufficient to pull him over, the speeding violation would not have been

captured by the recording, and reasonable suspicion to investigate driving

under the influence emerged from Appellant’s bloodshot eyes and the odor

of alcohol emanating from Appellee’s person.

     We reject the trial court’s rationale that the recording was materially

exculpatory because it would have shown whether Appellee was weaving

while Trooper Theodore was following him. Even if the video showed that

Appellee were not weaving, as discussed in more detail below, Trooper

Theodore had probable cause to pull Appellee over for the speeding



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violation. Thus, the recording was immaterial when considering whether the

traffic stop was lawful.

          Having determined that the recording was not materially exculpatory

because of what it may have shown prior to the stop, we turn to whether the

recording was materially exculpatory for what it may have shown during the

traffic    stop.    The    facts   in   this   case   are   similar   to   the    facts   in

Commonwealth v. Spotti, 94 A.3d 367 (Pa. Super. 2014) (en banc). In

Spotti, the defendant was involved in a motor vehicle accident while being

pursued by police. Id. at 369. The police officer who was chasing Spotti did

not preserve the recording of the chase because, he said, it did not show the

accident at issue in the case. Id. at 382.

          Spotti argued that the recording was materially exculpatory evidence

as it may have shown that one of the other drivers involved in the crash was

driving recklessly.       This Court rejected that argument and held that the

recording was potentially useful evidence. Id. at 383-384. Specifically, this

Court held that Spotti’s “claim that the recording may have depicted [the

other driver] engaging in unsafe driving is purely speculative.                  The mere

possibility that the recording might have depicted events differently does not

establish materiality.”      Id. at 383 (internal quotation marks and citation

omitted).

          The case sub judice is similar.        The recording may have depicted

Appellee passing the FSTs administered by Trooper Theodore; however, such



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a claim is purely speculative. The fact that the recording may have depicted

events differently than Trooper Theodore’s testimony does not prove

materiality.

      We find instructive a decision of the Supreme Court of the United

States.   In Illinois v. Fisher, the defendant was arrested in 1988 for

possession of cocaine. 540 U.S. 544, 545 (2004). Prior to trial, he fled to

avoid the charges.   Id.   In 1999, the police destroyed the cocaine seized

during the traffic stop despite the fact that Fisher had not yet been tried for

the crime and there was a pending discovery request from defense counsel

to examine the drugs. Id. at 546. The Supreme Court of the United States

held that such evidence was plainly potentially useful evidence under

Youngblood. Id. at 548. Even though examination of the substance may

have been Fisher’s only path to acquittal, he was still required to prove bad

faith in order to have the charges dismissed. Id. at 548-549.

      As in Fisher, the recording in this case would not have proven

Appellee’s innocence. Instead, as in Fisher, the recording would have been

subject to testing, i.e., viewing, in order to ascertain its contents. Thus, as

in Fisher, the recording in this case was plainly potentially useful evidence

and not materially exculpatory evidence.

      We also find persuasive the decision of the Court of Appeals of

California, Fourth District, Division 3 in California v. Alvarez, 176 Cal. Rptr.

3d 890 (App. 4 Dist. 2014). In Alvarez, surveillance video was destroyed



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J-A32029-14


which may have shown that two defendants in a robbery case were not

involved with the third defendant.      The appellate court held that such

evidence was not materially exculpatory.      Id. at 902.   Instead, the court

found that the evidence was potentially useful under Youngblood. Id. at

902.   Accordingly, it held that the defendants were required to show bad

faith on the part of the state in order to have the charges dismissed. Id.

       We also find persuasive the decision of the United States District Court

for the Western District of Missouri in United States v. Butler, 2011 WL

5387535 (W.D. Mo. Sept. 29, 2011), adopted, 2011 WL 5374578 (W.D.

Mo. Nov 07, 2011). In Butler, two officers pursued the defendant. Id. at

*1. That pursuit was recorded by their dashboard camera. Id. One year

later, the video was destroyed. Id. at *2. Butler filed a motion to dismiss

arguing that the failure of the officers to preserve the dashboard recording

violated his right to due process. Id. The United States District Court for

the Western District of Missouri found that the dashboard recording was

merely potentially useful evidence, and not materially exculpatory evidence.

Id. As Butler could not prove bad faith, his motion to dismiss was denied.

Id. at *3.

       As in Alvarez and Butler, the video in the instant case was merely

potentially useful and not materially exculpatory.    There was no evidence

presented that the recording would definitively show that Appellee passed

the FSTs. To the contrary, at oral argument Appellee admitted that whether



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the video would be exculpatory would depend on the quality of that video

and what actually occurred during the traffic stop. It is equally likely that

the recording would have corroborated Trooper Theodore’s testimony, i.e.,

Appellee failed each of the FSTs. In its Rule 1925(a) opinion, the trial court

agreed, noting that “Appellee did not know that the video would either bear

out his version of everything that happened that night or would bear out

[Trooper Theodore’s] version.” Trial Court Opinion, 4/16/14, at 2.

      Accordingly, we conclude that the trial court erred as a matter of law

in finding that the recording was materially exculpatory evidence. Instead,

the record reflects that the recording was merely potentially useful evidence.

Therefore, Appellee was required to show that the Commonwealth acted in

bad faith by destroying the recording in order to have the charges

dismissed. As Appellee concedes that he is not able to prove bad faith, the

trial court erred by granting the motion to dismiss premised on a violation of

Appellee’s right to due process of law.

      We now turn to the trial court’s alternative determination, i.e., that

dismissal of the charges was warranted under Pennsylvania Rule of Criminal

Procedure 573(E). That rule provides that:

      If at any time during the course of the proceedings it is brought
      to the attention of the court that a party has failed to comply
      with [its discovery obligations], the court may order such party
      to permit discovery or inspection, may grant a continuance, or
      may prohibit such party from introducing evidence not disclosed,
      other than testimony of the defendant, or it may enter such
      other order as it deems just under the circumstances.



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Pa.R.Crim.P. 573(E).     “Although not expressly included in the list of

remedies, a trial court does have the discretion to dismiss the charges

[under Rule 573(E)], but only for the most extreme and egregious

violations.” Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa. Super.

2011), appeal denied sub. nom. Commonwealth v. Styers, 24 A.3d 864

(Pa. 2011) (citation omitted); see Commonwealth v. Smith, 955 A.2d

391, 394 (Pa. Super. 2008) (en banc) (citation omitted).

      In this case, Appellee de facto admits that this is not an extreme and

egregious violation of Rule 573 sufficient to warrant dismissal. Specifically,

Appellee admits that the Commonwealth’s destruction of the recording does

not rise to the level of bad faith. If the destruction were not done in bad

faith then certainly the Commonwealth’s failure to comply with its discovery

obligations, by destroying the recording, was likewise not extreme and

egregious. Accordingly, we conclude that the trial court abused its discretion

in dismissing the charges under Rule 573(E).       The trial court had other

options available in order to remedy the discovery violation.        A lesser

sanction would have been more appropriate in these circumstances. As we

conclude that both rationales given by the trial court for dismissal of the

charges were erroneous, we reverse the order of the trial court granting

Appellee’s motion to dismiss the charges.

      We next consider the trial court’s suppression of the evidence gathered

by Trooper Theodore. “Our standard of review in addressing a challenge to



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the [grant] of a suppression motion is limited to determining whether the

suppression court's factual findings are supported by the record and whether

the legal conclusions drawn from those facts are correct.” Commonwealth

v. Stem, 96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted).                  “[O]ur

scope of review is limited to the factual findings and legal conclusions of the

[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).

“[W]e are limited to considering only the evidence of the prevailing party,

and so much of the evidence of the non-prevailing party as remains

uncontradicted when read in the context of the record as a whole.” Id.

      “As [this Court has] explained, the Fourth Amendment to the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution

protect      citizens   from     unreasonable        searches     and         seizures.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal

alteration   and    quotation   marks    omitted).      The     burden   is     on   the

Commonwealth to prove, by a preponderance of the evidence, that the

evidence seized from Appellee was legally obtained. See Commonwealth

v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d

118 (Pa. 2013) (citation omitted). Probable cause is required to conduct a

traffic stop when the infraction at issue does not require any further

investigation. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.

2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (citation omitted).




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     The Commonwealth contends that the trial court erred by granting

Appellee’s motion to suppress the evidence gathered during the traffic stop.

It argues that Trooper Theodore had probable cause to pull Appellee over

because of the speeding violation.     It further contends that once Trooper

Theodore pulled Appellee over for speeding, he properly gathered the

requisite reasonable suspicion to extend the traffic stop and to ascertain

whether Appellee was driving under the influence of alcohol.

     In this case, the trial court found that the traffic stop was conducted in

order to investigate a DUI – thereby requiring Trooper Theodore to have

reasonable suspicion that Appellee was driving under the influence.       See

Commonwealth v. Weaver, 76 A.3d 562, 568 (Pa. Super. 2013), aff’d,

2014 WL 6750608 (Pa. Dec. 1, 2014) (per curiam) (requiring reasonable

suspicion to pull a suspect over for driving under the influence). This mixed

finding of fact and conclusion of law, however, is not supported by the

record and is contrary to controlling Pennsylvania authority. The record is

clear that Trooper Theodore pulled Appellee over for the speeding violation.

See N.T., 2/6/14 v.I, at 37 (Trooper Theodore stating that the only reason

he pulled Appellee over was for the speeding violation). 8 Although Trooper

Theodore followed Appellee for approximately one-half mile after originally

observing the speeding violation, this distance was reasonable.           It is


8
  The notes of testimony of the suppression hearing are in two volumes. We
cite to volume I as v.I and to volume II as v.II.



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impossible to pull a vehicle over in a matter of yards when that vehicle is

traveling at 65 miles per hour.      Rather, it takes some time to pursue the

vehicle, determine that it is safe to pull the vehicle over, and then effectuate

the traffic stop. Therefore, we conclude that the record does not support the

trial court’s finding. Instead, the record establishes that the traffic stop was

initiated in response to Appellee’s speeding violation.      Trooper Theodore

clearly had probable cause to stop Appellee for the speeding violation as his

radar gun registered Appellee’s vehicle going 65 miles per hour in a 55 miles

per hour zone.

      Although Trooper Theodore had probable cause to pull Appellee over,

that does not end our inquiry. As this Court has explained:

      When conducting a routine traffic stop, an officer may request a
      driver’s license and vehicle registration, run a computer check
      and issue a citation. Upon producing a valid driver’s license and
      registration, the driver must be allowed to proceed on his way,
      without being subject to further delay by police for additional
      questioning. In order to justify detaining the driver for further
      questioning, the officer must have reasonable suspicion of illegal
      transactions in drugs or of any other serious crime.

Commonwealth v. Grosso, 672 A.2d 792, 794 (Pa. Super. 1996) (internal

alteration, citations, and quotation marks omitted).

      As this Court has explained:

      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of
      reliability in the totality of the circumstances. . . . In assessing
      the totality of the circumstances, courts must also afford due
      weight to the specific, reasonable inferences drawn from the
      facts in light of the officer’s experience and acknowledge that


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      innocent facts, when considered collectively, may permit the
      investigative detention.

      The determination of whether an officer had reasonable
      suspicion . . . is an objective one, which must be considered in
      light of the totality of the circumstances.

Clemens, 66 A.3d at 379 (ellipsis and citation omitted).

      In this case, Trooper Theodore had reasonable suspicion to believe

that criminal activity was afoot, i.e., Appellee was driving under the

influence of alcohol.   Specifically, Trooper Theodore testified that when he

approached the vehicle he smelled alcohol emanating from it.                See N.T.,

2/6/14 v.I, at 37. Furthermore, Trooper Theodore testified that he observed

that Appellee had glassy and bloodshot eyes. See N.T., 2/6/14 v.II, at 4.

This information gave Trooper Theodore reasonable suspicion to believe that

Appellee was driving under the influence. See Commonwealth v. Segida,

985 A.2d 871, 879 (Pa. 2009).           Therefore, Trooper Theodore had lawful

justification to request that Appellee perform various FSTs. When Appellee

failed those FSTs, Trooper Theodore obtained probable cause to arrest

Appellee for driving under the influence. See Commonwealth v. Cauley,

10 A.3d 321, 327 (Pa. Super. 2010). Accordingly, Trooper Theodore did not

violate Appellee’s right to be free from unreasonable searches and seizures.

The trial court’s conclusion to the contrary was an error of law and we

therefore reverse the order granting Appellee’s motion to suppress.

      In sum, we conclude that the recording of the traffic stop was

potentially   useful   evidence   and    not     materially   exculpatory   evidence.


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Appellee was therefore required to prove that the Commonwealth acted in

bad faith by destroying that evidence.         As Appellee conceded during oral

argument, he cannot prove that the Commonwealth acted in bad faith.

Likewise, the Commonwealth’s failure to produce the recording was not such

an egregious violation of Rule 573 to warrant dismissal of the charges.

Thus, the trial court erred by granting Appellee’s motion to dismiss.

Furthermore, we conclude that the trial court erred in finding that Trooper

Theodore pulled Appellee over for suspicion of driving under the influence.

Instead, he was pulled over for speeding and Trooper Theodore later

developed, because of the odor of alcohol, combined with bloodshot and

glassy eyes, reasonable suspicion to suspect that Appellee may have been

driving under the influence of alcohol. Accordingly, the trial court erred by

alternatively granting Appellee’s motion to suppress.

     Order reversed. Case remanded. Jurisdiction relinquished.

     Panella, J., joins this memorandum.

     Fitzgerald, J., notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2015




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