J-S02022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

KRISTOFER CARL CADE,

                            Appellant                No. 95 EDA 2014


         Appeal from the Judgment of Sentence of December 6, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000090-2013


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 10, 2015

       Appellant, Kristofer Carl Cade, appeals from the judgment of sentence

entered on December 6, 2013, following his stipulated bench trial conviction

for persons not to possess a firearm.1         On appeal, counsel filed an

application to withdraw from representation pursuant to Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v.

California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s

behalf. Upon careful consideration, we grant counsel leave to withdraw and

affirm the judgment of sentence.

       The trial court aptly summarized the facts and procedural history of

this case as follows:

____________________________________________


1
    18 Pa.C.S.A. § 6105.
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           On November 11, 2012, Officer [David] Wiley of the
       Abington Police Department conducted a traffic stop of a
       silver Chevrolet Tahoe with a Pennsylvania license plate
       number GPW7435, when it went through a steady red light.
       [Appellant was a passenger in the vehicle.] At the time of
       the traffic stop, the officer detected an odor of marijuana
       and observed a partially burnt marijuana cigar.

           Officer Wiley conducted a search incident to arrest due
       to an active [arrest] warrant on Appellant. As a result of
       that search, Officer Wiley found a firearm, a silver and black
       Taurus model PT92AF. The firearm was a semi-automatic
       9-millimeter pistol and it was operable. The firearm was
       loaded with 15 rounds in the magazine and one round in the
       [chamber].

           Appellant has a prior conviction for possession with
       intent to deliver for importing cocaine, a felony offense
       which prohibits Appellant from possessing a firearm and
       makes him a person not to possess a firearm.

           On December 6, 2013, [after waiving his right to a jury
       trial and stipulating to the aforementioned facts, the trial
       court found Appellant guilty of firearm possession and
       sentenced] Appellant [to 3½ to 10 years of imprisonment].
       A timely appeal was filed on December 26, 2013. In
       response, [the trial court] issued an order directing
       Appellant to file a concise statement of errors complained of
       on appeal in conformance with Pa.R.A.P. 1925(b) (“1925(b)
       statement”). Appellant did not file a 1925(b) statement,
       and instead requested an extension of time. An extension
       was granted, allowing Appellant an additional 30 days from
       January 24, 2014. Appellate counsel did not comply, and
       on March 5, 2014, [the trial court] authored an [o]pinion
       stating that counsel’s failure to file a 1925(b) statement
       precluded a meaningful review. Subsequently, appellate
       counsel filed a petition for limited remand with [this Court].
       On May 5, 2014, [this Court] remanded the case back to
       [the trial court] for 60 days for the filing of a 1925(b)
       statement and a corresponding [Pa.R.A.P.] 1925(a)
       [o]pinion. On May 19, 2014, appellate counsel filed a
       1925(b) statement and [the trial court filed an opinion on
       May 28, 2014].


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Trial Court Opinion, 5/28/2014, at 1-2.2

       On appeal, counsel filed a purported Anders brief in this Court and an

accompanying application to withdraw as counsel.            The Anders brief

presents two potential issues for our review:

         Did the trial court manifestly abuse its discretion and
         commit reversible error when it denied Appellant’s motion
         to suppress evidence obtained from a traffic stop that
         Appellant contends was made without probable cause?

         Did the trial court manifestly abuse its discretion and
         commit reversible legal error when it refused to make an
         inference adverse to the Commonwealth where the video
         recording of Appellant’s traffic stop was lost by the police?

Appellant’s Brief at 4 (complete capitalization omitted).

       “Initially, we note that we may not address the merits of the issue

raised on appeal        without first reviewing   the   request to   withdraw.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc).     Counsel must: 1) petition the court for leave to withdraw stating

that, after making a conscientious examination of the record, counsel has

determined that the appeal would be frivolous; 2) furnish a copy of the brief

to the defendant; and 3) advise the defendant that he or she has the right to

retain private counsel or raise additional arguments that the defendant

deems worthy of the court's attention. Id. (citation omitted).

____________________________________________


2
  The trial court’s opinion is not paginated. For ease of reference, we have
supplied page numbers to our citations.



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       Herein, counsel's petition to withdraw from representation states that

he reviewed the record and concluded that the appeal is frivolous.

Additionally, counsel notified Appellant that he was seeking permission to

withdraw and furnished Appellant with copies of the petition to withdraw and

Anders brief, and advised Appellant of his right to retain new counsel or

proceed pro se to raise any points he believes worthy of this Court's

attention.3 Accordingly, counsel has satisfied the procedural requirements of

Anders.

       Having concluded that counsel has complied with the procedural

mandates of Anders, we now determine whether counsel's Anders brief

meets the substantive dictates.           In the Anders brief that accompanies

court-appointed counsel's petition to withdraw, counsel must: (1) provide a

summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports

the appeal; (3) set forth counsel's conclusion that the appeal is frivolous;

and (4) state counsel's reasons for concluding that the appeal is frivolous.

Id. Counsel should articulate the relevant facts of record, controlling case

law, and/or statutes on point that have led to the conclusion that the appeal

is frivolous. Id. (citation omitted).



____________________________________________


3
    Appellant has not responded to counsel’s petition to withdraw.



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      Instantly, counsel provided the facts and procedural history of the

case. Based upon his review, counsel concludes that suppression was not

warranted because police had probable cause to stop the vehicle at issue for

a violation of the Motor Vehicle Code. Appellant was a passenger in a car

that proceeded through a red light in contravention of 75 Pa.C.S.A.

§ 3112(a)(3)(i).   Appellant’s Brief at 23. Appellant also contends that the

trial court erred by failing to draw an adverse inference against the

Commonwealth because the police officer’s dashboard camera video was

destroyed prior to trial.   However, counsel concludes that the trial court

“found that the video recording was lost as a result of a technical error”

which occurred “when a police technician attempted to download the file

containing the video recording onto a compact disk or a USB driver … that

rendered the video file unusable.” Id. at 30. Counsel notes, the trial court

found “that the Abington Police Department was not at fault for [the video’s]

loss.” Id. Further, counsel maintains that the trial court “also determined

that the lost video recording did not contain any exculpatory evidence.” Id.

Based upon the foregoing, we conclude that counsel has complied with the

minimum requirements of Anders. We now turn to the issues presented on

appeal.

      In his first issue presented, Appellant contends:

                 [The trial court] erroneously ruled that there was
          sufficient cause for Officer Wiley to stop [the] Chevrolet
          Tahoe in Abington Township [on the day in question] where
          [Appellant] contends that the controlling traffic signal was

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         green when the Tahoe went through the intersection of
         Mount Carmel Avenue and Limekiln Pike. As a result,
         [Appellant] contends, the stop of his friend’s silver Tahoe
         lacked probable cause, was illegal, and any evidence that
         was discovered following that illegal stop was subject to
         suppression as the fruit of the poisonous tree.

Appellant’s Brief at 18.

      “Our standard of review in addressing a challenge to the denial 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.

McAdoo, 46 A.3d 781, 783 (Pa. Super. 2012). “[T]he reviewing court may

consider only the Commonwealth's evidence and so much of the evidence for

the defense as remains uncontradicted when read in the context of the of

the entire record.”    Commonwealth v. Lagenella, 83 A.3d 94, 98 (Pa.

2013).    “[I]t is exclusively the province of the suppression court to

determine the credibility of the witnesses and weight to be accorded their

testimony.”   Commonwealth v. Krisko, 884 A.2d 296, 299 (Pa. Super.

2005).


      A police officer has the authority to stop a vehicle when he or she has

reasonable suspicion that a violation of the motor vehicle code has taken

place, for the purpose of obtaining necessary information to enforce the

provisions of the code.    Commonwealth v. Brown, 64 A.3d 1101, 1105

(Pa. 2013), citing 75 Pa.C.S.A. § 6308(b). “However, if the violation is such



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that it requires no additional investigation, the officer must have probable

cause to initiate the stop.”       Id. (citation omitted; original emphasis

omitted).

      Here, the trial court determined that Officer Wiley had probable cause

to conduct a vehicular stop of the car in which Appellant was riding because

the driver of the vehicle drove through a steady red light.           Trial Court

Opinion, 5/28/2014, at 3-5. The trial court credited Officer Wiley’s version

of events. Id. at 4. Officer Wiley testified that he was positioned directly

behind the silver Chevrolet when he witnessed it travel through a steady red

light. Id. More specifically, Officer Wiley testified that while the car initially

veered to the right as if to turn onto Limekiln Pike when the traffic light

displayed a right green arrow, the car veered back quickly to the left and

continued straight on Mount Carmel Avenue.            Id.   However, the light

remained red for traffic continuing straight and, thus, Officer Wiley instituted

a traffic stop for running a red light. Id.

      Upon review of the record and based upon our standard of review, we

discern no abuse of discretion in denying Appellant’s suppression motion.

Officer Wiley had probable cause that a motor vehicle violation had occurred.

“Vehicular traffic facing a steady red signal alone shall stop at a clearly

marked stop line, or if none, before entering the crosswalk on the near side

of the intersection, or if none, then before entering the intersection and shall

remain standing until an indication to proceed is shown[.]”         75 Pa.C.S.A.


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§ 3112 (a)(3)(i). Officer Wiley testified that there was a steady red light at

the intersection at issue, the driver of the silver Chevrolet started to move

right as a green arrow indicated, but then veered left and went straight

through the red light.      Here, the trial court credited the police officer’s

version of events over Appellant’s account of the incident. We will not usurp

those credibility determinations. Because Officer Wiley had probable cause

that a motor vehicle code violation occurred, the vehicular stop was

appropriate.   The Anders brief does not challenge any ensuing search or

seizure and, based upon our independent review of the record, we find that

they conformed with the law.            Accordingly, the trial court’s denial of

suppression was supported. Hence, Appellant’s first issue fails.

      In his next issue presented, Appellant claims the trial court abused its

discretion   when   it   “failed   to   take   [a]n   inference   adverse   to   the

Commonwealth as a result of the destruction [by the Abington Police

Department] of the video recording of [] the traffic stop of the silver

Chevrolet Tahoe in which [Appellant] was riding[.]” Appellant’s Brief at 25.

Appellant suggests the inference was necessary as a remedy for the alleged

spoliation. Id. at 26.

      Our Supreme Court summarized the relevant legal principles that

govern the Commonwealth’s obligation to avoid the suppression or loss of

exculpatory evidence consistent with the Due Process Clause of the United




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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).

      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,




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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, the trial court “found that the video did not contain any

exculpatory evidence.” Trial Court Opinion, 5/28/2014, at 6. The trial court

“concluded that the video from the dash[board] cam[era] was not

retrievable due to no fault of Officer Wiley.”       Id.   The trial court’s

determinations were “based on Officer Wiley’s credible testimony, discerned

from the officer’s demeanor and lack of motive to be untruthful.” Id. Upon

review, we agree.

     Officer Wiley testified that he and a computer technician “were

attempting to remove [the video] from [the police computer] server” when

they “ran into an error and for some reason the video was purged from the

system[.]” N.T., 8/29/2013, at 9. He testified that the error was not the


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result of deliberate misconduct. Id. at 10. Officer Wiley said this was the

first time he had contact with Appellant and he had no reason to be

dishonest about his dealings with Appellant. Id. at 11.

      In this case, there was no evidence presented that the police

dashboard recording would have definitively shown that the vehicle in which

Appellant was riding did not drive through a steady red light.    Indeed, no

one saw the content of the video before it was lost. It is equally likely that

the recording would have corroborated Officer Wiley’s version of events. At

best, the video in the instant case was merely potentially useful and not

materially exculpatory. Therefore, Appellant was required to show that the

Commonwealth acted in bad faith by destroying the recording. The trial

court determined, and the record confirms, that Officer Wiley did not destroy

the video in bad faith, but its damage resulted from a technical error. Thus,

we reject Appellant’s second claim as presented.

      Further, after an independent review of the entire record, we see

nothing that might arguably support this appeal. See Commonwealth v.

Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the

Anders brief triggers the duty of our Court to conduct an independent

review of the entire record to make sure counsel has fully represented his

client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly,

we affirm Appellant’s judgment of sentence and grant counsel’s petition for

leave to withdraw appearance.


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     Petition for leave to withdraw as counsel granted.   Judgment of

sentence affirmed.

     Judge Wecht joins this memorandum.

     Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




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