J-A20005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

ETHAN STEWART KENNEY

                                                   No. 1542 WDA 2015


            Appeal from the Order Entered September 29, 2015
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0001323-2014


BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 06, 2017

     The Commonwealth appeals from the September 29, 2015 order

precluding it from presenting certain evidence at trial.   We find the issues

waived and thus, dismiss this appeal.

     Appellee Ethan Stewart Kenney was charged with homicide by vehicle

while driving under the influence of alcohol, accidents involving death,

homicide by vehicle, driving under the influence of alcohol while a

minor, purchase of alcohol by a minor, and various violations of the

Motor Vehicle Code.      The charges in question arose from a single-

vehicle traffic accident that occurred sometime during the early

morning hours of        June 9,     2013,   on Ridge Boulevard, Dunbar

Township.
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     The affidavit of probable cause filed in this matter indicates that

the following occurred.   At approximately 4:00 a.m. on the day in

question, a 911 call was placed about the collision.     State Trooper

Andrew Barron was the first police responder, arriving at 4:18 a.m.,

and he observed Appellant’s vehicle, a black 2004 Chevrolet Colorado

truck, with heavy damage to its exterior. The vehicle in question had

failed to negotiate a curve in the highway and then struck a guardrail,

a bridge abutment, and another guardrail before it became lodged

against a tree.   There was no one in the driver’s seat, but the sole

passenger, Catherine Healy, was severely injured.           Emergency

medical personnel had arrived at the scene before Trooper Barron

and were in the process of transporting Ms. Healy to the hospital,

where she later died from those injuries.

     The time of the accident was not outlined in the affidavit. When

Trooper Barron arrived at the crash site, there were two people

present, Jeremy Lee Castrodad and Julia Livengood.      They both told

Trooper Barron that Appellee had been with them at a party held at a

house owned by Rick Noel on Ridge Boulevard and that Appellee “left

the party sometime before them.”         Affidavit of Probable Cause,

1/3/14, at 1. After Mr. Castrodad and Ms. Livengood departed from

Mr. Noel’s house, they came upon the accident and recognized

Appellee’s truck. It was Mr. Castrodad who telephoned 911. Both of

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these witnesses also said that, after they stopped at the crash site,

Appellee exited a wooded area, tried to give Ms. Healy medical

attention, asked them not to telephone the police, and then fled back

into the woods upon the arrival of the emergency medical services

(“EMS”) personnel.

       The affidavit of probable cause further sets forth the following.

At 6:00 a.m., Trooper Barron spoke with the two EMS responders

who had aided Ms. Healy.                They told the officer that when they

arrived at the scene at 4:07 a.m., they observed a male performing

chest compressions on Ms. Healy before he fled the scene. Two other

state troopers found Appellee walking toward his residence at

approximately 6:40 a.m.            He agreed to have his blood drawn, 1 and

his blood alcohol content was .117%.

       The following facts are not contested.            State Trooper Todd

Stephenson of the Collision Analysis and Reconstruction Unit was

called to aid in the investigation.              After he viewed and took

photographs of the accident scene, police impounded Appellee’s

vehicle and had it towed.           Police then obtained a search warrant for

the truck. They inspected it for mechanical integrity and downloaded

____________________________________________


1
   At the preliminary hearing, it was established that Appellee’s blood was
drawn at 7:15 a.m. at Uniontown Hospital.



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the information from the vehicle’s event data recorder. The results of

the inspection conducted pursuant to the search warrant were used

by Trooper Stephenson to complete an expert report on the cause of

the motor vehicle accident.

     The charges against Appellee were not filed until January 3, 2014, six

months after the June 9, 2013 accident. Following the preliminary hearing,

Appellee filed an omnibus pretrial motion in which he sought habeas corpus

relief and contended, inter alia, that there was insufficient evidence to

establish that the accident occurred due to his ingestion of alcohol.   That

motion was not successful.     On June 29, 2015, Appellee filed a motion

asking to inspect the vehicle and for access to the expert report issued by

Trooper Stephenson.    That motion was granted on July 8, 2015, and the

court accorded Appellee “access to the vehicle for inspection” and the full

contents of the report. Order of Court, 7/8/15, at 1.

     On September 24, 2015, Appellee filed a document titled, “Motion to

Dismiss For Spoliation of Evidence.” Therein, he sought the suppression of

the expert report authored by Trooper Stephenson. In that report, Trooper

Stephenson, based upon the results of the inspection conducted of

Appellee’s truck pursuant to the search warrant, concluded that the vehicle

was operating in good working condition and had no major malfunctions.

     In his motion, Appellee set forth the following. Even though the July 8,

2015 order accorded him access to the truck, which was towed and

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impounded by police, the district attorney had failed to provide Appellee with

any information as to the whereabouts of the vehicle.       Appellee tried to

locate it of his own.   Appellee called the Uniontown State Police Barracks,

and neither Trooper Stephenson nor Trooper Barron knew where the truck

was located. The evidence custodial officer at the barracks likewise had no

knowledge of the vehicle, but he ascertained that it was not in the

Pennsylvania State Police impound lot. Based upon his inability to find the

truck, Appellee set forth that he believed “that the vehicle was sold to a

salvage yard, and was ultimately disposed of.”        Motion to Dismiss For

Spoliation of Evidence, 9/24/15, at ¶ 14. He averred that the “disposal of

the vehicle is spoliation of evidence on [the] part of the Commonwealth.”

Id. at ¶ 15. Appellee sought a ruling that the Commonwealth be prevented

from presenting Trooper Stephenson’s expert report since Appellee would

not be able to rebut that report through his own inspection due to the

Commonwealth’s disposal of the truck.

      In his September 28, 2015 brief in support of the motion, Appellee

supplemented the pertinent facts by indicating that, four days after he filed

his September 24, 2014 motion, the district attorney finally contacted him

and told him that the truck had been towed to Joe’s Body Shop in Fairbank,

Pennsylvania after the accident and was last seen there.      Appellee called

Joe’s Body Shop and was told that his insurance carrier had removed the




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truck.    Appellee said that neither he nor his counsel was notified that the

insurance company had taken the truck.

         In seeking suppression of the expert report, Appellee relied upon

Arizona      v.   Youngblood,   488   U.S.   51   (1988)   and   California   v.

Trombetta, 467 U.S. 479 (1984), wherein the United States Supreme Court

indicated that a defendant enjoys constitutionally-guaranteed access under

the due process clause to tangible evidence, such as blood and semen, for

purposes of examining such evidence for its potentially exculpatory value.

Those cases also provide that, if the evidence is destroyed in good faith and

in accordance with standard police practice, there is no due process

violation, especially if the Commonwealth will not be relying upon its own

testing on such evidence or there are other means by which the defendant

can prove his innocence.

         Appellee also relied upon the Pennsylvania        Rules of Criminal

Procedure:

             In all court cases, on request by the defendant, and
         subject to any protective order which the Commonwealth
         might obtain under this rule, the Commonwealth shall disclose
         to the defendant's attorney all of the following requested
         items or information, provided they are material to the
         instant case. The Commonwealth shall, when applicable,
         permit the defendant's attorney to inspect and copy or
         photograph such items (f) any tangible objects, including
         documents, photographs, fingerprints, or other tangible
         evidence.

Pa.R.Crim.P. 573(B)(f).



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        The Commonwealth failed to file any written response to Appellee’s

motion and brief. At the argument on the motion, the Commonwealth did

not assert that it acted in good faith and in accord with its standard

practice when it allowed the truck to be removed from the body shop. It

also did not ask for a hearing on the motion. Instead, the Commonwealth

made one statement: it still did not know the location of the truck and

whether it had remained in the custody of the state police. N.T., Motions

Court Proceedings, 9/28/16, at 3.

        On September 28, 2015, the trial issued an order providing that the

Commonwealth had until October 2, 2015 to make the vehicle available to

Appellee for inspection.       The order further stated, “In the event that the

vehicle is not made available for inspection and examination by the

Defendant, then testimony and/or evidence of the Commonwealth of

Pennsylvania’s examination of said vehicle is PRECLUDED FROM TRIAL.”

Order    of   Court,    9/26/15,     at   3    (capitalization   in   original).   The

Commonwealth failed to make the vehicle available and the inspection

results became inadmissible.

        This appeal under Pa.R.A.P. 311(d)2 followed.            The Commonwealth

raises two issues for our review:

____________________________________________


2
  That rule states, “Commonwealth appeals in criminal cases.--In a
criminal case, under the circumstances provided by law, the Commonwealth
(Footnote Continued Next Page)


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      I. Did the Court of Common Pleas err in failing to hold an
      evidentiary hearing on the [Appellee's] motion to dismiss for
      spoliation of evidence, prior to entering an order suppressing the
      evidence?

      II. If the vehicle itself was an item of evidence which the
      Commonwealth was obligated to preserve, then prior to
      suppressing evidence arising from the vehicle, was the
      [Appellee] obligated to establish that the vehicle constituted
      materially exculpatory evidence or that the Commonwealth acted
      in bad faith by not preserving the vehicle?

Commonwealth's brief at 4 (capitalization omitted).3
    We conclude that the issues raised in this appeal are waived.

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). The Commonwealth did not

respond to Appellee’s motion in writing. At the argument on the motion, the

Commonwealth said one thing: it did not know where the truck was located.

The Commonwealth did not seek a hearing in a written motion responding to

Appellee’s motion asking for the expert report to be suppressed. It did not,

                       _______________________
(Footnote Continued)

may take an appeal as of right from an order that does not end the entire
case where the Commonwealth certifies in the notice of appeal that the
order will terminate or substantially handicap the prosecution.” Pa.R.A.P.
311(d).
3
    We note that no attorney for the Commonwealth appeared at oral
argument for this appeal. However, the Commonwealth had moved for a
continuance of oral argument, which we had denied. In that order, we
indicated that we would excuse any failure by counsel to appear at oral
argument and that the matter would be decided on the briefs. Appellee
appeared and argued that the issues raised in this appeal were waived and
noted that the Commonwealth had more than three months to find out
where the vehicle was located and did nothing to ascertain its whereabouts.



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at the oral argument on Appellee’s motion, request a hearing. Likewise, the

Commonwealth did not assert, either in writing or in the argument on the

motion, that the defendant had to prove that it acted in bad faith in

disposing of the truck. Even now, it does not claim that it knows where the

vehicle is or whether it was destroyed.      It merely asserts that Joe’s Body

Shop gave it to an insurance company, a fact uncovered by Appellee and not

the Commonwealth.

      Our Supreme Court has repeatedly advised that issues not raised

before the trial court may not be raised for the first time on appeal. It has

cogently articulated its rationale for this rule of law:

             Issue preservation is foundational to proper appellate
      review. Our rules of appellate procedure mandate that “issues
      not raised in the lower court are waived and cannot be raised for
      the first time on appeal.” Pa.R.A.P. 302(a). By requiring that an
      issue be considered waived if raised for the first time on appeal,
      our courts ensure that the trial court that initially hears a dispute
      has had an opportunity to consider the issue.                Lincoln
      Philadelphia Realty Assoc. v. Bd. or Revision of Taxes of
      Philadelphia, 563 Pa. 189, 203, 758 A.2d 1178, 1186 (2000).
      This jurisprudential mandate is also grounded upon the principle
      that a trial court, like an administrative agency, must be given
      the opportunity to correct its errors as early as possible. Wing
      v. Com. Unemployment Comp. Bd. of Review, 496 Pa. 113,
      117, 436 A.2d 179, 181 (1981). Related thereto, we have
      explained in detail the importance of this preservation
      requirement as it advances the orderly and efficient use of our
      judicial resources. See generally Dilliplaine v. Lehigh Valley
      Trust Co., 457 Pa. 255, 258–59, 322 A.2d 114, 116–17 (1974).
      Finally, concepts of fairness and expense to the parties are
      implicated as well. Id.

In re F.C. III, 2 A.3d 1201, 1211–12 (Pa. 2010).



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      The Commonwealth’s lackadaisical approach to the issue of Appellee’s

inspection of the vehicle involved herein is startling. The police had towed

and   impounded     the   vehicle,   which    was   therefore   subject   to   the

Commonwealth’s control after the accident.             On July 8, 2015, the

Commonwealth was told that Appellee had the right to inspect the truck in

order to attempt to refute the expert report. The Commonwealth made no

effort to locate a vehicle that had been subject to its control since the

accident. When faced with the motion to suppress the expert report, it did

not respond to that motion or make any cogent argument at oral argument

to refute Appellee’s averments in the motion and accompanying brief. Since

the issues raised herein were waived, we decline to address them.

      Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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