J-S66013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

DAVID F. KELLY BEY

                         Appellant                   No. 1624 MDA 2015


          Appeal from the Judgment of Sentence August 25, 2015
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-SA-0000077-2015



BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 13, 2016

      David F. Kelly Bey appeals from the judgment of sentence of sixty

days incarceration, plus a fine and costs, following his conviction for driving

while operating privilege is suspended (DUI-related). We affirm.

      The facts underlying this matter are as follows. On January 3, 2015,

Appellant was traveling, with two passengers, in the left lane on Interstate

81 notwithstanding the absence of traffic in the right lane.           Despite

precipitation, Appellant had not engaged his windshield wipers or headlights.

While monitoring traffic, Pennsylvania State Trooper Zeina Lane observed

Appellant and initiated a traffic stop.    A mobile video recording device

attached to Trooper Lane’s vehicle recorded the encounter.       Trooper Lane

issued four citations for violations pursuant to the Pennsylvania Vehicle
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Code, including driving while operating privilege is suspended (DUI-related),

failure to drive in the right lane, and failure to display head lamps during a

required period.1

        A summary trial was held before the magisterial district judge on

March 9, 2015.       While not transcribed, the record indicates the following

occurred at the proceeding.            During the summary hearing, the judge

appointed counsel.        Appointed counsel then requested production of the

video recording of the traffic stop.           The Trooper in attendance at the

proceeding informed Appellant that the recording had been deleted after

thirty days in accordance with established Pennsylvania State Police

procedure. The district judge found Appellant guilty of the three above-

mentioned violations and dismissed the fourth.            Appellant appealed his

conviction for driving while operating privilege is suspended (DUI-related) to

the court of common pleas for a de novo trial.

        Prior to his hearing on appeal, Appellant filed a pretrial omnibus

motion, styled as a suppression motion, alleging that the failure to produce

the video evidence from the traffic stop violated Brady v. Maryland, 373

U.S. 83 (1963) under the United States and Pennsylvania Constitutions, and

requesting the suppression of all physical evidence obtained from the traffic

stop. A joint hearing and trial was held on August 25, 2015, wherein the
____________________________________________


1
    The certified record does not indicate the nature of the fourth citation.



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court denied Appellant’s motion and found him guilty of driving with a

suspended      license.     The   court   sentenced    Appellant   to    sixty   days

incarceration, a $500 fine, and costs. Appellant filed a timely appeal, and

complied with the court’s order to file a Rule 1925(b) statement of errors

complained of on appeal. The court then authored its Rule 1925(a) opinion,

and this matter is now ready for our consideration.

         Appellant raises two questions for our review:

   I.      Is there a due process right to reasonable preservation of
           potentially useful evidence in a criminal prosecution under the
           Pennsylvania constitution?

   II.     Does any such due process right attach to a summary
           proceeding that includes mandatory jail time?

Appellant’s brief at 5.

         Appellant first raises a constitutional challenge, which is a pure

question of law, and therefore our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Britton, 134 A.3d 83, 87

(Pa.Super. 2016).         Appellant argues that Article I, Section 9 of the

Pennsylvania Constitution provides broader protection of a person’s due

process     rights   than   the   protection    afforded   under   the   Fourteenth

Amendment to the United States Constitution. Appellant asserts that under

our Constitution, due process requires the state to preserve potentially

useful evidence, in this case the video recording of his traffic stop,

regardless of the Commonwealth’s bad faith, thus expanding the evidentiary



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protections guaranteed by Brady, supra.         In support of this position,

Appellant   has   provided    the   requisite   four-part   analysis      under

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).

     Since resolution of this matter involves the scope of the test outlined

in Brady, supra, we set it forth at the outset. In Brady, the United States

Supreme Court held that

     [t]he suppression by the prosecution of evidence favorable to an
     accused upon request violates due process where the evidence is
     material either to guilt or 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). As a threshold matter, this Court

must determine whether the suppressed evidence is material to guilt or

punishment.

     Appellant avers that, historically, Pennsylvania has relied upon the test

for materiality espoused in United States v. Agurs, 427 U.S. 97 (1976).

In Agurs, the Supreme Court found, in part, that due process was violated



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“when there was a failure to respond to a defendant’s specific request for

information if the suppressed evidence “[m]ight have affected the outcome

of the trial.” Id. at 104. Appellant maintains that our High Court continued

to rely on this formulation even after the United States Supreme Court

abrogated the test in United States v. Bagley, 473 U.S. 667 (1985). See

Commonwealth       v.   Moose,    602       A.2d   1265,   1272   (Pa.   1992);

Commonwealth       v.   Green,    640   A.2d       1242,   1245   (Pa.   1994);

Commonwealth v. Johnson, 727 A.2d 1089, 1094 (Pa. 1999).                     In

Bagley, the Court found that regardless of the specificity of the request,

“evidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would

have been different.” Id. at 682. Moreover, “a ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” Id. Despite

early disapproval of the Bagley Court’s articulation of materiality, our

Supreme Court began relying on Bagley over a decade ago.                   See

Commonwealth v. Ferguson, 866 A.2d 403, 407 (Pa.Super. 2004)

(concluding that the standard of materiality enunciated in Bagley applies to

all Brady claims raised in Pennsylvania).

     In California v. Trombetta, 467 U.S. 479, 488 (1984), the United

States Supreme Court held that the state suppressed evidence when it

destroyed breath samples used in a breathalyzer test.        Nevertheless, the

Court found this suppression did not violate due process. In reaching that

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conclusion, the Court stated “evidence [triggering a State’s duty to preserve

evidence] must both possess an exculpatory value that was apparent before

the evidence was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably

available means.” Id. at 488-489.

     The concept of bad faith was soon thereafter introduced into the

federal analysis in Arizona v. Youngblood, 488 U.S. 51 (1988), wherein

the police spoiled semen samples, and consequently, the defendant was

unable to perform independent analysis of those samples. In Youngblood,

the Court first distinguished between “materially exculpatory” evidence and

evidence “of which no more can be said than that it could be subjected to

tests, the results of which might have exonerated the defendant[,]” that is,

so-called “potentially useful” evidence. Id. at 57. When faced with merely

potentially useful evidence, the Court opined that the defendant is required

to show the evidence was destroyed in bad faith.     The Court stated, “We

think that requiring a defendant to show bad faith on the part of the police

both limits the extent of the police’s obligation to preserve evidence to

reasonable bounds and confines it to that class of cases where the interests

of justice most clearly require it, i.e., those cases in which the police

themselves by their conduct indicate that the evidence could form a basis for

exonerating a defendant.” Id at 58.




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      Appellant posits that our High Court broke from this line of reasoning

and announced a more stringent test in Commonwealth v. Deans, 610

A.2d 32 (Pa. 1992). In that case, the defendant was charged with forging a

lottery ticket three years after he attempted to claim it. In the interim, the

Commonwealth had investigated, and subsequently lost, the purportedly

forged ticket.   The Court distinguished Deans from Youngblood, stating

“[t]he prosecutor in Youngblood did not attempt to make use of

incriminating evidence denied to the defendant . . . [thus] there was no

suggestion by the prosecutor that the missing evidence would have

incriminated the defendant, and it was pure speculation by the defendant

that the evidence, if it existed, might have exonerated him.” Id. at 518-

519. However, in Deans, “the prosecutor conducted an examination and is

attempting to introduce the results of his examination as evidence against

the defendant while denying the defendant any possible benefit to be

derived from an examination of the primary evidence in the case.” Id. at

519. Hence, the Deans court found that permitting the use of that evidence

by the prosecutor “would deprive appellant of due process irrespective of

good faith or bad faith on the part of the prosecution.” Id.

      Following the decision in Deans, supra, the United States Supreme

Court decided Illinois v. Fisher, 540 U.S. 544 (2004). The Fisher Court

held that there was no violation of due process where the police destroyed

cocaine seized during a traffic stop nearly eleven years after the defendant

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was charged. Prior to destroying the cocaine, the state had subjected it to

four separate tests.    Utilizing the Youngblood framework, the Court

determined that the cocaine was merely “potentially useful evidence,” and

that “at most, respondent could hope that, had the evidence been

preserved, a fifth test conducted on the substance would have exonerated

him.”     Id. at 548 (emphasis in original).        The Court clarified its

understanding of the distinction elucidated in Youngblood, stating “the

applicability of the bad-faith requirement in Youngblood depended not on

the centrality of the contested evidence to the prosecution’s case or the

defendant’s case, but on the distinction between ‘materially exculpatory’

evidence and ‘potentially useful’ evidence.”   Id. at 549.    Hence, Fisher

established the distinction between “materially exculpatory” and “potentially

useful” evidence as the threshold requirement for applying Brady, supra to

destroyed evidence.

        Our Supreme Court adopted Fisher, supra, in Commonwealth v.

Snyder, 963 A.2d 396 (Pa. 2009), which was decided solely on federal

grounds. In expressly abrogating Deans, supra, the Court established the

Youngblood distinction as the first step in determining whether the

destruction of evidence violates due process under Brady, supra.         The

Court observed that, given the difficulties of determining the materiality of

unavailable evidence, “we have required support for an allegation that

destroyed evidence was exculpatory, holding it cannot be based on a ‘mere

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assertion.’” Id. at 405. Snyder is the current articulation of the materiality

test in this Commonwealth.

      Notwithstanding our decision in Snyder, supra and consistent reliance

on United States Supreme Court precedent in analyzing destroyed evidence

due process claims, Appellant contends that requiring a showing of bad-faith

departs from the purpose of Article I, Section 9 of the Pennsylvania

Constitution as well as our decision in Deans, supra.        Appellant reasons

that the development of Brady jurisprudence in Pennsylvania and our

tendency to find that Article I, Section 9 more broadly protects the rights of

citizens of the Commonwealth, militates in favor of a finding that police

should preserve potentially useful evidence in a criminal proceeding

regardless of bad faith.       We find no compelling reason to extend the

evidentiary protection afforded by Brady, supra and Snyder, supra to

potentially useful evidence.

      Instantly, it is undisputed that the recording of Appellant’s traffic stop

was merely potentially useful evidence. Moreover, the Commonwealth made

no attempt to use the recording, nor was it necessary for it to sustain its

evidentiary burden.    Appellant argues that information contained on that

tape was essential to impeach Trooper Lane. However, Appellant had access

to two witnesses who could have provided an account of the weather

conditions on the day in question, and Appellant’s behavior. Appellant made

no showing that those witnesses were unavailable to impeach Trooper Lane’s

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testimony. In light of this readily available evidence, the recorded evidence

of the traffic stop could, at best, merely support this otherwise available

impeachment testimony. Even providing that the recording was potentially

useful to Appellant, its materiality to Appellant’s guilt was dubious. Hence,

the suppression did not prejudice Appellant. Brady, supra.

      Furthermore, despite Appellant’s averments to the contrary, courts in

this Commonwealth have consistently adopted and applied the case law

outlined in the United States Supreme Court’s Brady jurisprudence.

Pursuant to Fisher, supra and Snyder, supra, the Commonwealth could

only be found in violation of Brady for failing to preserve the recording if

Appellant made an affirmative showing that it was destroyed in bad faith.

However, Appellant did not allege the Commonwealth’s destruction of the

recording was in bad faith.         In addition, the Commonwealth proffered

evidence that, as a matter of policy, traffic-stop recordings are destroyed

after thirty-days, unless otherwise requested.       Snyder, supra at 405

(finding it “very unlikely we could find bad faith where samples are

destroyed pursuant to standard procedure.”).      Thus, due to the likelihood

that access to the recording would have no impact on the outcome of the

proceeding, and the Commonwealth’s lack of bad faith in its destruction, we

find Appellant is not entitled to relief.




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     Having determined that the evidentiary protections espoused in

Brady, supra do not apply to potentially useful destroyed evidence absent a

showing of bad faith, we do not reach Appellant’s second issue.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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