J-S76045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellant

                  v.

ANTHONY KEFFER

                       Appellee                   No. 1389 WDA 2014


                  Appeal from the Order August 11, 2014
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001702-2009

BEFORE: FORD ELLIOTT, P.J.E., PANELLA and OLSON, JJ.

MEMORANDUM BY OLSON, J.:                       FILED JANUARY 13, 2015

     The Commonwealth of Pennsylvania appeals from the order entered on

August 11, 2014 granting Appellee, Anthony Keffer’s, motion to dismiss the

charges filed against him. We reverse and remand.

     We have previously outlined the alleged factual background as follows:

     At around 6:30 p.m. on May 6, 2009, Detective Ryan Reese and
     another officer from the Fayette County Drug Task Force were
     working with a confidential informant (“CI”) to investigate
     possible narcotics violations. The plan was for the CI to attempt
     to purchase narcotics from [Appellee].

     Prior to the transaction, Detective Reese searched the CI for
     weapons, money, and narcotics and found none. Detective
     Reese gave the CI $120.00 and drove him to the South Side
     Grocery store on South Pittsburgh Street in Connellsville,
     Pennsylvania. Detective Reese parked his vehicle in a lot across
     the street, where he had an unobstructed view of the CI
     engaging in the transaction from about 120 to 125 feet. While
     the CI was outside of his car, Detective Reese constantly
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        observed the CI through binoculars. It was still daylight with a
        slight mist in the air.

        From past experience, Detective Reese recognized [Appellee]
        standing next to the store. The CI walked over to [Appellee]
        who handed the CI a small object. [Appellee] got in his car and
        drove away. Detective Reese drove over and picked up the CI.
        The CI had no other interactions with anyone other than
        [Appellee].

        The CI gave Detective Reese ten 15-milligram [] pills. Detective
        Reese searched the CI: the $120.00 was gone and no other pills
        were on his person.

Commonwealth v. Keffer, 30 A.3d 548 (Pa. Super. 2011) (per curiam)

(unpublished memorandum), at 1-3.

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

December 15, 2009, Appellee was charged via criminal information with one

count of delivery of a controlled substance and one count of possession with

intent to deliver a controlled substance.1 On September 9, 2010, Appellee

was convicted of both counts and was subsequently sentenced to 27 to 54

months’ imprisonment.           We affirmed the judgment of sentence.      See

generally id.      Appellee did not seek review by our Supreme Court.

Thereafter, Appellee filed a pro se petition pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       Counsel was appointed

and filed an amended petition. On October 3, 2013, the PCRA court granted

the petition, and vacated Appellee’s judgment of sentence, after finding that

Appellee’s Sixth Amendment confrontation rights had been violated.

1
    35 P.S. § 780-113(a)(30).



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        Appellee was retried and, on May 6, 2014, a mistrial was declared

after the jury deadlocked on the two charges.            During the retrial, it was

revealed for the first time that the Commonwealth had destroyed the ten

pills found on the CI. Also during the retrial, the Commonwealth moved to

amend the criminal information to change the substance with which Appellee

was accused of distributing from OxyContin to oxycodone.2                  On July 25,

2014, Appellee filed a motion to dismiss the charges. He argued that the

actual     pills   were   important    evidence    since,   at      the    retrial,   the

Commonwealth’s expert and the defense expert disagreed over whether the

pills were OxyContin or oxycodone.          On August 11, 2014, the trial court

heard argument on, and granted, the motion to dismiss.                    At that time,

Appellee had spent 48 months in prison due to the charges in this case. This

timely appeal followed.3



2
    As the Appellate Court of Illinois, Fifth District explained:

        [O]xycodone is a single-release entity, but OxyContin has a
        biphasic release in which the oxycodone contained therein is first
        released at approximately [36 minutes] after ingestion with a
        second release approximately 6.9 hours after ingestion. So
        rather than the drug level going up and coming back down fairly
        quickly, OxyContin goes up and the level stays up. OxyContin is
        oxycodone, but it differs because of the release mechanism in
        the pills.

Metz v. Rosewood Care Ctr., Inc., 2012 IL App (5th) 090133-U, 5 (2012).
3
  On August 25, 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). The Commonwealth contemporaneously filed the
(Footnote Continued Next Page)


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      The Commonwealth presents one issue for our review:

      Whether the [trial c]ourt erred in granting [Appellee]’s motion to
      dismiss and quash the criminal complaint due to destruction of
      evidence when the Commonwealth can sustain its burden
      without the evidence with a lab report and chain of custody?

Commonwealth’s Brief at 4.

      The Commonwealth contends that the trial court erred in granting

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

the Commonwealth violated his due process rights in failing to preserve the

pills he is alleged to have delivered to the CI.    “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).

      The Commonwealth argues that the trial court abused its discretion in

dismissing the charges filed against Appellee. The Commonwealth contends

that it did not act in bad faith by destroying the pills because Appellee had

been convicted and his judgment of sentence was affirmed on appeal.         It

further contends that the evidence was not materially exculpable and that

the conflicting testimony between the two experts went to the weight of the

evidence, not its sufficiency. Therefore, the Commonwealth argues that the

                       _______________________
(Footnote Continued)
concise statement with its notice of appeal. On September 3, 2014, the trial
court issued its Rule 1925(a) opinion. The Commonwealth’s lone issue on
appeal was included in its concise statement.



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trial court abused its discretion in dismissing the charges filed against

Appellee.

     Appellee, on the other hand, argues that we must affirm the trial

court’s order dismissing the charges against him.      Specifically, Appellee

argues that the destruction of this evidence precluded testing to determine

whether the pills were exculpatory.    Without the opportunity to test these

pills, Appellee complains that the Commonwealth deprived him of the chance

to exonerate himself, especially in view of the Commonwealth’s last minute

amendment of the criminal information.

     Our Supreme Court summarized the relevant legal principles that

govern a prosecutor’s obligation to avoid suppression of exculpatory

evidence consistent with the Due Process Clause of the U.S. 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



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      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,

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”].




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Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (emphasis added). 4 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.” See id. at 58.

     The trial court in this case found that the pills were potentially useful

evidence and not materially exculpatory evidence. See Trial Court Opinion,

9/3/14, at 3. The trial court found, however, that the Commonwealth had

acted in bad faith.   See id.    Specifically, it held “that the prima facie

showing of bad faith on the part of the Commonwealth ha[d] been

established, since the Commonwealth was the party in control of, and

admittedly responsible for, the destruction of the physical evidence.” Id.

     We conclude that the trial court abused its discretion in finding that

Appellee had demonstrated bad faith on the part of Commonwealth.             The

Commonwealth is always the party that controls physical evidence relating

to criminal prosecutions.    Hence, under the trial court’s rationale, any

destruction of evidence in the possession of the Commonwealth rises to the

level of bad faith. Such a rule impermissibly expands a defendant’s right to

preservation of potentially useful evidence as explained in Youngblood.


4
  Youngblood dealt with the destruction of evidence prior to trial. This case
is different in that the evidence was destroyed after Appellee was found
guilty and his sentence affirmed on appeal. Courts have, however, extended
the Youngblood bad faith requirement to cases in which evidence was
destroyed after trial. See Illinois v. Barksdale, 762 N.E.2d 669, 683 (Ill.
App. Ct. 2001).



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Cases from this Court, our Supreme Court, and the Supreme Court of the

United States illustrate the point that the mere destruction of evidence in the

possession of the Commonwealth, without more, does not necessarily rise to

the level of bad faith.

        In Commonwealth v. Free, 902 A.2d 565, 566 (Pa. Super. 2006),

dozens of marijuana plants were seized and the defendant was charged with

various drug offenses.     Six months after the plants were confiscated, the

trial court signed an order permitting a defense expert to examine the

plants.    Id. at 567.     The day after that order was signed, the police

destroyed the plants pursuant to a court order that had been issued months

earlier. Id. Free moved to dismiss the charges, arguing the Commonwealth

violated his right to due process by destroying the plants prior to

examination by his expert. Id. The trial court granted the motion.

        On appeal, this Court reversed. See id. at 566. This Court held that

the police did not act in bad faith as they had acted in conformity with a

department policy to destroy such drugs. Id. at 572-573. Furthermore, this

Court held that the police department’s alternative to keeping the plants,

having a chemist perform tests on the plants and take photographs, was

reasonable. Id. at 573. This Court concluded that the police did not act in a

calculated manner to circumvent disclosure requirements. Id.

        There is less evidence of bad faith in the case at bar than there was in

Free.     Specifically, the police in the case at bar kept the drugs through



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Appellee’s first trial and ensuing appellate litigation.   In Free, the plants

were destroyed prior to Free’s first trial. Furthermore, there was no order in

place in the case at bar to permit Appellee’s expert to examine the pills at

the time of destruction like there was in Free.

      In Snyder, our Supreme Court held that it is very difficult to find bad

faith when evidence is destroyed pursuant to a standard policy.       Snyder,

963 A.2d at 406, citing United States v. Beckstead, 500 F.3d 1154, 1159-

1160 (10th Cir. 2007).     Our Supreme Court went on to say that even if

evidence is destroyed outside of standard practice, it is not ipso facto

destroyed in bad faith.    Id.   Ultimately, our Supreme Court held that the

destruction of evidence was not in bad faith as it appeared to have been

done pursuant to a standard policy. Id.

      In this case, there is no evidence of whether the destruction occurred

pursuant to a standard policy or if the destruction occurred outside of a

standard policy. Even if the evidence were destroyed outside of a standard

policy, however, it was not done in bad faith. The Commonwealth kept the

pills until Appellee’s judgment of sentence became final.     It then believed

that the pills no longer needed to be retained.

      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



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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.

     Fisher lends further support to the conclusion that the pills at issue in

this case were potentially useful evidence and not materially exculpatory

evidence.   Moreover, Fisher confirms that it is not axiomatic that police

acted in bad faith in destroying evidence merely because a trial has not

occurred, and a discovery request is pending.        Instead, the defendant is

required to present some evidence that the Commonwealth acted with bad

faith other than the mere fact that the evidence was in the possession of the

Commonwealth. In this case, the record does not support the finding that

Appellee came forth with such evidence. To the contrary, the only evidence

presented   was   that   the   evidence   was   in   the   possession   of   the

Commonwealth and had been destroyed.

     We also find instructive decisions from other jurisdictions in which

courts have determined that the destruction of evidence after a conviction

became final did not rise to the level of bad faith. See Hubanks v. Frank,

392 F.3d 926, 930–931 (7th Cir. 2004) (destruction of evidence 15 months

after trial was not done in bad faith); Lovitt v. Warden, 585 S.E.2d 801,



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815–816 (Va. 2003) (destruction of DNA evidence after capital murder

conviction was not done in bad faith); Johnston v. Texas, 99 S.W.3d 698,

703 (Tex. App. 2003) (destruction of evidence after conviction affirmed on

appeal was not done in bad faith).

      For these reasons, we agree with the trial court that the pills were

potentially useful - and not materially exculpatory. We conclude, however,

that Appellee failed to prove that the Commonwealth destroyed the pills in

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

in granting Appellee’s motion to dismiss the charges. The prosecution and

the defense both had an opportunity, prior to Appellee’s first trial, to look at

and test the pills in this case. Now that the pills have been destroyed, it is

for the jury to determine how much weight should be afforded to the

testimony   of   the   prosecution’s   witness(es)   regarding   the   chemical

composition of the pills.   We therefore reverse the trial court’s order and

remand for further proceedings consistent with this memorandum.5

      Order reversed. Case remanded. Jurisdiction relinquished.




5
   We note the observations of the trial court concerning the continued
pursuit of this matter even though Appellee has spent more time
incarcerated for this crime than he would likely receive if reconvicted and
resentenced. See N.T., 8/11/14, at 7. It is, however, not the duty of the
trial court, or this Court, to interfere with the prosecutor’s exercise of
discretion. See In re Private Criminal Complaints of Rafferty, 969 A.2d
578, 582 (Pa. Super. 2009) (a court may only interfere with exercise of
prosecutorial discretion where the prosecutor’s decision is “patently
discriminatory, arbitrary[,] or pretextual”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2015




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