J-S01030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAVID KELLY BEY                            :
                                               :
                      Appellant                :   No. 1211 MDA 2017

              Appeal from the Judgment of Sentence July 6, 2017
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-SA-0000019-2017


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                             FILED JANUARY 31, 2018

        David Kelly Bey (“Appellant”) appeals from the judgment of sentence

imposed after the trial court convicted him of driving while his operating

privilege was suspended or revoked (DUI related).1 Appellant argues that his

due process rights were violated because the Commonwealth failed to

preserve a motor vehicle recording (“MVR”) of the traffic stop, and that the

traffic stop was not supported by reasonable suspicion.2           After careful

consideration, we affirm.

        On January 17, 2017, at approximately 8:20 p.m., Chambersburg Police

Officer Matthew Lynch observed a tan Ford minivan going through an
____________________________________________
1 75 Pa.C.S. § 1543(b)(1) (driving while operating privilege is suspended or
revoked as a condition of Accelerated Rehabilitative Disposition due to DUI-
related conviction).

2   The Commonwealth has not filed an appellee’s brief.
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intersection, passing perpendicularly in front of the officer’s patrol car. Officer

Lynch recognized the minivan, which had damage from an incident in October

2016, when Officer Lynch cited Appellant for driving the minivan while his

license was suspended.3 As the minivan passed, Officer Lynch had a “partial

view” of the driver, who he described as a “larger built black male.” N.T. Trial,

7/6/17, at 14, 19. Believing the driver to be Appellant, Officer Lynch followed

the minivan, ran its registration, and confirmed it was the same vehicle from

the October 2016 stop. Before the officer could determine Appellant’s license

status, however, he observed the minivan turn right without a turn signal, a

violation of the Motor Vehicle Code.4          Officer Lynch initiated a traffic stop,

determined that Appellant was indeed the driver and that his license was still

suspended, and thus cited him for driving while his license was suspended,

DUI related. An MVR of the traffic stop was made at the time of the stop, but

Officer Lynch did not download the video within 30 days; accordingly, the MVR

was automatically and permanently erased. Id. at 8.

        On February 13, 2017, Appellant appeared pro se before a magisterial

district judge, who found him guilty of driving while his license was suspended,

DUI related, and imposed a sentence of 90 days’ imprisonment. Appellant

filed a summary appeal and the trial court conducted a trial de novo on July
____________________________________________
3   Officer Lynch did not further explain the vehicle damage.

475 Pa.C.S. §3334(a) (turning movements and required signals) (no person
shall turn vehicle without giving appropriate signal).




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6, 2017.5 Appellant, represented by counsel, requested the opportunity to

view the MVR of the traffic stop in order to determine whether it would include

any exculpatory evidence. Id. at 6. Officer Lynch testified that the MVR was

not available because he had not downloaded the video within the requisite

30 day period for preserving it.               The officer explained that the police

department’s general practice was to not download every traffic stop video

because, with numerous traffic stops every day, the MVRs would “use [too

much] space.”      Id.    The trial court then denied Appellant’s oral motion to

dismiss the charge, stating that there was no ill will on the Commonwealth’s

part. Id. at 11. Officer Lynch testified in the Commonwealth’s case-in-chief,

and Appellant did not present any evidence.

       The trial court found Appellant guilty of driving while his license was

suspended related to a DUI, and sentenced him to 90 days’ imprisonment. In

its opinion, the court determined that the Commonwealth’s failure to preserve

the MVR did not violate Appellant’s due process rights. It first found that the

MVR was not materially exculpatory, where Appellant did not specify how the

MVR was material to his guilt; the court additionally noted that Appellant never

claimed that the MVR would have exonerated him, but instead appeared to

seek the MVR solely to challenge the legality of the stop. Trial Ct. Op. at 9-

10, citing Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011)

____________________________________________
5 The trial court was also scheduled to hear Appellant’s summary appeal in
another matter, docketed at CP-28-SA-0000020-2017, for which Officer Lynch
did preserve an MVR of a traffic stop. The trial court granted Appellant’s
motion to continue that matter so that he could view the MVR.

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(Due Process Clause of Fourteenth Amendment requires Commonwealth to

disclose, if requested, any evidence which is exculpatory and material to guilt

or punishment and exculpatory evidence which might raise reasonable doubt

about defendant’s guilt even if not requested). The trial court next found that

the MVR was potentially useful, but denied relief because Appellant failed to

establish that Officer Lynch acted in bad faith.       Trial Ct. Op. at 9, citing

Chamberlain, 30 A.3d at 402 (“When the state fails to preserve evidence

that is ‘potentially useful,’ there is no federal due process violation ‘unless a

criminal defendant can show bad faith on the part of the police.’”).

Additionally, the trial court concluded the traffic stop was legal, and specifically

found that Officer Lynch had both reasonable suspicion to believe Appellant

was driving while his license was suspended, and probable cause to stop him

for turning without an appropriate signal. Thereafter, Appellant filed a timely

notice of appeal and complied with the court’s order to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

      Appellant presents the following issues for review:

      1. Did the trial court erred [sic] by failing to assess whether the
      evidence of the Mobile Video Recording (“MVR”) by the
      Commonwealth was materially exculpatory or potentially useful?

      [2.] Whether the trial [court] abused its discretion by finding that
      the Officer had reasonable suspicion to pull over the vehicle.




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Appellant’s Brief at 7.6

       Significantly, in his first issue, Appellant concedes that the MVR was not

materially exculpatory, but states the MVR was “potentially useful at the very

least,” and thus he should have had the opportunity to question Officer Lynch

about the contents of the MVR. Appellant’s Brief at 14. Appellant further

asserts that the trial court erred in failing to assess whether the MVR was in

fact potentially useful.

       “Initially, we note this issue presents a 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). “The Due


____________________________________________
6 Appellant’s statement of questions involved also included these issues with
a notation that they were withdrawn:

       2. Whether the trial court erred by failing to dismiss the Summary
       citation against Appellant as a violation of Appellant’s due process
       rights on the basis of spoliation of evidence as the Officer involved
       in the stop did not download the MVR?

       WITHDRAWN- Argument contained with Question 1

       3. Did the trial court err by failing to require the Commonwealth
       to turn over evidence relating to the MVR as exculpatory evidence
       and as such is not subject to Pa.R.Crim.P. 573 applicability to
       court cases only?

       WITHDRAWN

Appellant’s Brief at 7. While the inclusion of extraneous issues in the
statement of questions involved does not, in this case, impede our ability to
review this appeal, we remind counsel, “The statement of the questions
involved must state concisely the issues to be resolved[.]” See Pa.R.A.P.
2116(a).

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Process Clause of the Fourteenth Amendment requires defendants be provided

certain access to certain kinds of evidence prior to trial, so they may ‘be

afforded a meaningful opportunity to present a complete defense.’”

Commonwealth v. Snyder, 963 A.2d 396, 401 (Pa. 2009) (citation omitted).

“When the state fails to disclose evidence that is materially exculpatory to

a defendant, a federal due process violation occurs and the evidence must be

suppressed without regard to the good or bad faith of the prosecution.” Id.

at 408 (emphasis added), citing Illinois v. Fisher, 540 U.S. 544, 547

(2004); Brady v. Maryland, 373 U.S. 83 (1963). In contrast, when the state

fails to preserve potentially useful evidence — characterized as “evidentiary

material of which not more can be said than that it could have been subjected

to tests, the results of which might have exonerated the defendant” — “the

failure to preserve such evidence does not violate due process ‘unless a

criminal defendant can show bad faith on the part of the police.’” Snyder,

963 A.2d at 408, citing, inter alia, Fisher, 540 U.S. at 547-48. In considering

a federal due process claim that the Commonwealth failed to preserve

evidence, a court first determines whether the evidence was “materially

exculpatory” or “potentially useful.” Snyder, 963 A.2d at 405. If a court finds

that the evidence was potentially useful, then it next considers whether the

Commonwealth acted in bad faith in destroying it. Id. at 406.

      In this case, the trial court determined that the MVR was not materially

exculpatory, a point which Appellant now concedes on appeal. See Appellant’s


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Brief at 13. Further, the court explained that while the MVR was potentially

useful, it credited Officer Lynch’s testimony as to why the police department

did not preserve every MVR, and accordingly found no bad faith in the officer’s

decision not to preserve this particular MVR.7 Trial Ct. Op. at 10 (“The MVR

falls within the second category of evidence that is potentially useful, because

it was unpreserved by the Commonwealth before [Appellant] had an

opportunity to examine it.”). Thus, Appellant’s first issue is without merit.

       In his second issue, Appellant concedes the trial court properly found

that the traffic stop was supported by probable cause with respect to a

suspected Vehicle Code violation of turning without an appropriate signal.

Appellant nevertheless claims that the court abused its discretion in finding

Officer Lynch had reasonable suspicion to believe Appellant was driving while

his license was suspended. Appellant specifically challenges the court’s finding

that Officer Lynch “knew,” just before the stop, that his license was

suspended; Appellant emphasizes that the officer’s testimony was that he

“believe[d]” the license was suspended. Appellant’s Brief at 17, citing Trial

____________________________________________
7 It appears the trial court’s reasons for why Appellant failed to show the MVR
was materially exculpatory could also apply to reach a finding he likewise
failed to establish the MVR was potentially useful. As stated above, evidence
is potentially useful if “it could have been subjected to tests, the results of
which might have exonerated the defendant.” Snyder, 963 A.2d at 408
(emphasis added). The court emphasized Appellant provided no explanation
why the MVR could be material to his guilt, nor presented any claim the MVR
would raise a reasonable doubt as to whether he was the driver of the minivan
or whether his license was suspended, and instead, it appeared he wished to
review the MVR solely to challenge the legality of the traffic stop. Trial Ct. Op.
at 9-10. Such an argument is not relevant to the question of guilt.

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Ct. Op. at 7; N.T. at 14. Appellant further contests what he characterizes was

the “crux” of the court’s analysis — Officer Lynch’s testimony that as the

minivan passed him, he saw a “larger built black male” driving. Appellant’s

Brief at 17-18. Appellant asserts that this vague description is insufficient for

a finding of reasonable suspicion pursuant to Commonwealth v. Palmer,

751 A.2d 223, 226 (Pa. Super. 2000) (“‘Driving while black’ is not among the

violations identified in the Motor Vehicle Code.         Because the officer’s

identification of [the defendant] was predicated solely upon a vague racial

description … articulable and reasonable grounds for the stop did not exist.”).

      As stated above, Appellant concedes that Officer Lynch possessed

probable cause to believe he committed a violation of the Motor Vehicle Code

when he made a turn without signaling.         Therefore, even if we were to

determine that the trial court improperly found Officer Lynch had reasonable

suspicion to believe Appellant was driving while his license was suspended, no

relief would be due. In any event, we hold that the trial court properly found

reasonable suspicion. “In Pennsylvania, a police officer has authority to stop

a vehicle when he or she has reasonable suspicion that a violation of the Motor

Vehicle Code is occurring or has occurred.” Commonwealth v. Farnan, 55

A.3d 113, 116 (Pa. Super. 2012).        “[W]hether an officer had reasonable

suspicion that criminality was afoot so as to justify an investigatory detention

is an objective one, which must be considered in light of the totality of the

circumstances.” Id. (internal citation omitted).


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      While Appellant correctly points out that Officer Lynch’s description of

him at the time the minivan passed the officer’s vehicle did not include his age

or any description of facial features or facial hair, Appellant concedes that

Officer Lynch previously encountered him on two occasions. The trial court

further considered the fact that Officer Lynch confirmed the minivan was the

same vehicle Appellant was driving in his prior citation for driving with a

suspended license.   In considering the totality of these circumstances, the

record supports the trial court’s finding that Officer Lynch had reasonable

suspicion to believe Appellant was driving while his license was suspended.

See 75 Pa.C.S. §1543(b)(1); Farnan, 55 A.3d at 115. Accordingly, no relief

is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/18




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