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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                               :
    TERRY LYN MOHLER                           :
                                               :
                       Appellant               :        No. 983 MDA 2019

       Appeal from the Judgment of Sentence Entered February 11, 2019
                 In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000095-2017


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY KING, J.:                            FILED: FEBRUARY 5, 2020

        Appellant, Terry Lyn Mohler, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following his jury trial

conviction for recklessly endangering another person (“REAP”) and bench trial

conviction for reckless driving.1 We affirm.

        The relevant facts and procedural history of this case are as follows. At

approximately 3:00 p.m. on July 15, 2016, Appellant completed his shift as a

PennDOT sign foreman. Appellant entered his PennDOT vehicle, a 2012 Ford

F550 crew cab truck, and proceeded to drive southbound on Route 61 in

Reading. Appellant had just passed Bellevue Avenue when he noticed a dirt

bike exit the parking lot at Ken’s Cycle Repair and turn onto Route 61


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1   18 Pa.C.S.A. § 2705 and 75 Pa.C.S.A. § 3736(a), respectively.
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southbound.

      This portion of Route 61 contains two lanes for southbound traffic.

Appellant drove in the left lane, while the dirt bike traveled in the right lane.

Appellant observed the dirt bike did not have a license plate or any type of

lights or safety signals. Appellant thought the dirt bike was an illegal street

vehicle, so he pulled alongside and shouted to its driver, Isaac Morales

(“Victim”), to “get off the road.” (N.T. Trial Volume II, 12/13/18, at 470.)

      Both vehicles stopped for a red light at the intersection of Route 61 and

Hartman Road. At that point, Victim spat on the passenger side window of

Appellant’s truck and sped away. Appellant pursued Victim southbound on

Route 61. Victim attempted to elude Appellant by crossing over the median

strip and traveling the wrong way in the northbound lanes.             Appellant

continued the pursuit, however, positioning his vehicle over the median strip

so that he was partially in the southbound and northbound lanes.

      Appellant caught up to Victim and hit the dirt bike with his truck. The

collision caused Victim to fall onto the road and sent the dirt bike careening

into oncoming traffic. The dirt bike came to a stop after it crashed into the

front bumper of a vehicle traveling northbound on Route 61, which was driven

by Joyce Dibuono.       Ms. Dibuono’s passenger, her husband Benjamin,

immediately called for an ambulance to assist Victim. Ms. Dibuono watched

Appellant’s truck come to a stop in the middle of Route 61, and she decided

to exit her vehicle and speak with Appellant.       When Ms. Dibuono asked


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Appellant why he hit the dirt bike, he responded: “[B]ecause the

kid…provoked him by spitting on his truck.” (N.T. Trial Volume I, 12/11/18,

at 174.)

        On January 31, 2017, the Commonwealth filed a criminal information,

charging Appellant with REAP, reckless driving, aggravated assault,2 and

aggravated assault by vehicle.3           Appellant proceeded to a jury trial on

December 10, 2018, and the Commonwealth called multiple witnesses who

had observed Appellant’s pursuit of Victim.

        On the second day of trial, the Commonwealth presented testimony

from Ms. Dibuono, followed by Mr. Dibuono.           During Mr. Dibuono’s direct

examination, defense counsel requested a sidebar. Outside the presence of

the jury, the parties informed the court that Appellant had not received

handwritten statements that three of the witnesses, including the Dibuonos,

had provided to the Muhlenberg Township Police Department.4 The prosecutor

informed the court that the investigating officer, Detective Francis Hill, had

not given him the statements until earlier that day.

        In light of this discovery violation, Appellant moved for dismissal of the

charges due to prosecutorial misconduct. The court deferred ruling on the


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2   18 Pa.C.S.A. § 2702(a)(1).

3   75 Pa.C.S.A. § 3732.1(a).

4 The third statement was from another Commonwealth witness, Ralph
Sterner, who testified on the first day of trial.

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motion and adjourned for the day to provide the parties with an opportunity

to review the handwritten statements. The court also noted that Appellant

could prepare a memorandum of law in support of his motion.

      The next day, Appellant submitted a memorandum of law. In addition

to the Commonwealth’s failure to provide the handwritten statements,

Appellant claimed the Commonwealth had “lost” a videotaped statement that

Appellant gave to the police on the day of the accident. (Memorandum, filed

12/12/18, at 2-3.)

      With the benefit of Appellant’s memorandum, the court conducted an in

camera hearing and received testimony from Detective Hill.      Detective Hill

informed the court that his department had accidentally “overwritten” the

videotape containing Appellant’s statement. (N.T. Trial Volume I, 12/12/18,

at 232.)   Detective Hill also testified that he could not explain why the

witnesses’ handwritten statements were left in a trial binder and not included

with the other discovery material. (Id. at 259.)

      After receiving argument from counsel, the court denied Appellant’s

dismissal motion.    The court acknowledged that the Commonwealth had

committed a discovery violation pursuant to Pa.R.Crim.P. 573, but the court

determined that the prosecutor had not committed “an intentional violation of

the rules.” (Id. at 289.) The court offered Appellant the option of requesting

a mistrial, which Appellant declined.     Consequently, the court provided

Appellant with the ability to recall Mr. Sterner and the Dibuonos to raise any


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issues related to their handwritten statements. The court also explained that

it would give defense counsel “great latitude” with these witnesses to “get into

subjects that were either previously addressed or that you now need to

address based on the statements….” (Id. at 295.)

      After the parties presented their remaining witnesses, the jury convicted

Appellant of REAP and acquitted him of aggravated assault and aggravated

assault by vehicle.    Additionally, the court found Appellant guilty of the

summary offense of reckless driving.       On February 11, 2019, the court

sentenced Appellant to eighteen (18) months’ probation.       Appellant timely

filed a post-sentence motion on February 21, 2019, challenging the weight of

the evidence supporting his convictions. By order entered May 28, 2019, the

court denied Appellant’s post-sentence motion.

      Appellant timely filed a notice of appeal on June 17, 2019. On June 20,

2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant timely filed his Rule

1925(b) statement on July 3, 2019.

      Appellant now raises two issues for our review:

         WHETHER THE TRIAL COURT ERRED IN DENYING
         [APPELLANT’S] MOTION TO DISMISS THE CHARGES
         AGAINST HIM DUE TO PROSECUTORIAL MISCONDUCT.

         WHETHER THE GUILTY VERDICTS FOR [REAP] AND
         RECKLESS DRIVING WERE SUPPORTED BY THE WEIGHT OF
         THE EVIDENCE.

(Appellant’s Brief at 9).


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      In his first issue, Appellant relies on Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for the proposition that a prosecutor’s

suppression of material evidence violates due process, regardless of whether

the prosecutor acted in good faith. Appellant also argues that a prosecutor’s

duty to disclose material evidence extends to evidence in the possession of

police agencies of the same government bringing prosecution. Based upon

the foregoing, Appellant concludes the Commonwealth’s discovery violations

warranted dismissal of the charges, pursuant to Rule 573(E). We disagree.

      Pennsylvania Rule of Criminal Procedure 573 governs a trial court’s

power to sanction a party for the failure to comply with mandatory discovery

requirements:

         Rule 573. Pretrial Discovery and Inspection

                                  *    *    *

            (E) Remedy. 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 this rule, 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.

Pa.R.Crim.P. 573(E). “This provision gives the trial court broad discretion in

formulating remedies for a failure to comply with discovery requirements.

Accordingly, our standard of review of a trial court’s decision to sanction a

party under [Rule 573(E)] is whether the trial court committed an abuse of

discretion.”   Commonwealth v. Galloway, 771 A.2d 65, 68 (Pa.Super.

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2001) (internal citations and quotation marks omitted).

     Further, our Supreme Court has reiterated the general principles

surrounding claims of Brady violations:

        Under Brady and subsequent decisional law, a prosecutor
        has an obligation to disclose all exculpatory information
        material to the guilt or punishment of an accused, including
        evidence of an impeachment nature. To establish a Brady
        violation, an appellant must prove three elements:

           (1) the evidence at issue was favorable to the
           accused, either because it is exculpatory or because it
           impeaches; (2) the evidence was suppressed by the
           prosecution, either willfully or inadvertently; and (3)
           prejudice ensued.

        The burden rests with the appellant to prove, by reference
        to the record, that evidence was withheld or suppressed by
        the prosecution. The evidence at issue must have been
        material evidence that deprived the defendant of a fair trial.
        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.

        Brady does not require the disclosure of information that is
        not exculpatory but might merely form the groundwork for
        possible arguments or defenses, nor does Brady require the
        prosecution to disclose every fruitless lead considered
        during a criminal investigation. The duty to disclose is
        limited to information in the possession of the government
        bringing the prosecution, and the duty does extend to
        exculpatory evidence in the files of police agencies of the
        government bringing the prosecution. Brady is not violated
        when the appellant knew or, with reasonable diligence,
        could have uncovered the evidence in question, or when the
        evidence was available to the defense from other sources.

        Brady sets forth a limited duty, not a general rule of

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         discovery for criminal cases.

Commonwealth v. Roney, 622 Pa. 1, 22-23, 79 A.3d 595, 607-08 (2013),

cert. denied, 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014) (internal

citations and quotation marks omitted).

      “[W]hile it is undoubtedly true that the trial court possesses some

discretion in fashioning an appropriate remedy for a Brady violation, that

discretion is not unfettered.” Commonwealth v. Burke, 566 Pa. 402, 415,

781 A.2d 1136, 1143 (2001). “It must be exercised in light of the competing

values weighed in the Brady analysis, and in light of the teachings in prior

cases involving similar concerns.” Id.

         Because of the compelling societal interest in prosecuting
         criminal defendants to conclusion, this Court has recognized
         that dismissal of charges is an extreme sanction that should
         be imposed sparingly and, relevant to the question here,
         only in cases of blatant prosecutorial misconduct.

                                 *       *   *

            Dismissal of criminal charges punishes not only the
            prosecutor…but also the public at large, since the
            public has a reasonable expectation that those who
            have been charged with crimes will be fairly
            prosecuted to the full extent of the law. Thus, the
            sanction of dismissal of criminal charges should be
            utilized only in the most blatant cases. Given the
            public policy goal of protecting the public from
            criminal conduct, a trial court should consider
            dismissal of charges where the actions of the
            Commonwealth        are   egregious     and  where
            demonstrable prejudice will be suffered by the
            defendant if the charges are not dismissed.

Id. at 416, 781 A.2d at 1144 (internal citations omitted).


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      Instantly, the trial court determined that the Commonwealth’s actions

did not warrant the dismissal of the charges against Appellant:

         The [three, written witness] statements were first provided
         to [Appellant] on the afternoon of the second day of trial, in
         the middle of cross-examination of one of the three
         witnesses and after the other two witnesses had already
         testified and were excused. The court dismissed the jury
         for the day to consider the implications of the late discovery.

                                  *    *    *

         As set forth in the notes of testimony, the court was willing
         to declare a mistrial to allow for adequate review of the
         material and trial preparation, which [Appellant] declined.
         Moreover, the court afforded [Appellant’s] counsel broad
         authority to examine the witnesses about the contents of
         their written statements (including permission to re-call
         excused witnesses), to question members of the police
         department about the failure to provide the statements in a
         timely manner, and to argue this issue during closing.

         However, as the court explained on the record—outside the
         presence of the jury—the Assistant District Attorney did not
         know about these written statements until the second day
         of trial, at which time he immediately notified [Appellant’s]
         counsel and the court. Such conduct does not warrant
         dismissal.

(Trial Court Opinion, filed October 2, 2019, at 2) (internal citation omitted).

      Here, the record supports the trial court’s determination that the

prosecutor did not know about the discovery violation until trial, and the

prosecutor did not intentionally attempt to withhold the statements. Absent

more, the trial court correctly concluded that Appellant was not entitled to

dismissal of the charges.    See Burke, supra at 419, 781 A.2d at 1146

(explaining “where there is no evidence of deliberate, bad faith overreaching


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by the prosecutor intended to provoke the defendant into seeking a mistrial

or to deprive the defendant of a fair trial, the proper remedy for the

Commonwealth’s failure to disclose exculpatory materials should be less

severe than dismissal”). Thus, the trial court did not abuse its discretion in

fashioning a remedy to the discovery violation under Rule 573(E), and

Appellant is not entitled to relief on his first issue. See Galloway, supra.

      In his second issue, Appellant argues he did not create a danger to other

motorists; rather, Victim created the danger by riding a dirt bike that was not

street legal. Appellant claims he followed Victim’s dirt bike across the median

to warn oncoming traffic about the biker, and any risks Appellant created were

outweighed by the utility of his actions.      Appellant insists Victim’s unsafe

driving created a critical situation, and it was Appellant’s duty as a PennDOT

employee to take actions to ensure the safety of the other motorists.

Moreover, Appellant maintains he could not have reasonably foreseen that his

attempt to maintain a safe roadway would result in an accident. Under these

circumstances, Appellant concludes his convictions are against the weight of

the evidence. Appellant’s claim is waived.

      A concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b), that is not specific enough for the trial court to identify and

address the issue an appellant wishes to raise on appeal can result in waiver

of the issue. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006),

appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “The court’s review and


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legal analysis can be fatally impaired when the court has to guess at the issues

raised.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011),

appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011).           “Thus, if a concise

statement is too vague, the court may find waiver.”            Id.   See also

Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa.Super. 2015)

(holding appellant waived his challenge to weight of evidence where his Rule

1925(b) statement failed to offer specific reasons why verdicts were against

weight of evidence).

      Instantly, Appellant’s Rule 1925(b) statement presented his weight

issue as follows: “The guilty verdicts for the aforementioned charges were

contrary to the weight of the evidence presented at trial, in that the testimony

against defendant was contradictory and not credible or reliable.” (See Rule

1925(b) Statement, filed 7/3/19, at 1.)       Significantly, the Commonwealth

presented nine witnesses over the course of two days. Appellant, however,

failed to identify the specific testimony now at issue, and the trial court was

left to guess what evidence Appellant sought to challenge on appeal. (See

Trial Court Opinion at 5.) We conclude Appellant’s second issue is waived on

this basis. See Freeman, supra; Hansley, supra. Accordingly, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2020




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