J-S45020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ADAM BUTLER

                            Appellant                 No. 2225 EDA 2016


            Appeal from the Judgment of Sentence October 19, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001557-2015
                                         CP-51-CR-0001558-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 06, 2017

        Appellant, Adam Butler, appeals nunc pro tunc from the judgment of

sentence imposed on October 19, 2015, in the Court of Common Pleas of

Philadelphia County. On appeal, Butler challenges the sufficiency of the

evidence to sustain his conviction for disorderly conduct, 18 Pa.C.S.A. §

5503(a)(3), and, for the first time on appeal, raises the claim that the

Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), in waiting

until almost the end of trial to hand over two police reports. We find the

Commonwealth presented sufficient evidence to sustain the conviction and

the Brady claim waived.


____________________________________________



    Retired Senior Judge assigned to the Superior Court.
J-S45020-17



      While the passenger in a vehicle that was the subject of a lawful traffic

stop, Butler needed to be removed from the car. Upon his removal, he threw

a temper tantrum in front of a boisterous crowd of onlookers, yelling “[g]et

the eff [i.e., fuck] off of me.” His tantrum, described in detail below, led to

his conviction, after a bench trial, of disorderly conduct; his threatening of

the officers, described in footnote three below, led to his conviction for

terroristic threats. The trial court imposed a sentence of 18 to 36 months for

the terroristic threats conviction and to no further penalty for the disorderly

conduct conviction.

      Butler first argues that the Commonwealth presented insufficient

evidence to sustain his conviction for disorderly conduct. In considering this

claim,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Critically
      important, we must draw all reasonable inferences from the
      evidence in favor of the Commonwealth as the verdict-winner.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part, or none of the evidence presented.

             The Commonwealth can meet its burden by wholly
      circumstantial evidence and any doubt about the defendant’s
      guilt is to be resolved by the fact finder unless the evidence is so
      weak and inconclusive that, as a matter of law, no probability of
      fact can be drawn from the combined circumstances. It is
      improper for this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. Additionally, the entire

                                     -2-
J-S45020-17


       record must be evaluated and all evidence actually received
       must be considered.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc)

(internal citations and quotation marks omitted).

       Butler’s argument focuses almost exclusively on his contention that

the officers did not testify credibly and that a video of the incident

contradicts their testimony. See Appellant’s Brief, at 11-13.1 As he

succinctly puts it, “whether the evidence was sufficient to sustain the

convictions in this matter is directly related to the credibility of the officers.”

Id., at 12. But it is not. This is a challenge not to the sufficiency of the

evidence, but to its weight. See, e.g., Commonwealth v. Wilson, 825

A.2d 710, 713-714 (Pa. Super. 2003) (“A sufficiency of the evidence review,

however, does not include an assessment of the credibility of the testimony

offered by the Commonwealth.”) By making this argument, Butler “has

blurred the concepts of weight and sufficiency of the evidence.” Id., at 714.

____________________________________________


1
   The video is not in the certified record. It was Butler’s responsibility to
ensure that the certified record contains all the items necessary to review his
claims. See, e.g., Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.
Super. 2006) (en banc). “When a claim is dependent on materials not
provided in the certified record, that claim is considered waived.”
Commonwealth v. Petroll, 696 A.2d 817, 836 (Pa. Super. 1997) (citation
omitted). In any event, as explained in this decision, the video goes to the
weight, not the sufficiency of the evidence. And it bears mention that the
trial court, sitting as the fact-finder, “did not find the video to contradict the
material aspects of the officers’ testimony.” Trial Court Opinion, filed
12/16/16, at 8.




                                           -3-
J-S45020-17


       However, Butler does present an argument, albeit buried in his

discussion of credibility, that the officers “testified baldly that he uttered

obscenities, but it is admitted that they do not remember what he said.”

Appellant’s Brief, at 12. The record does not support this claim.

       A disorderly conduct conviction under 18 Pa.C.S.A. § 5503(a)(3),

requires    using     “obscene     language”     “with   intent   to   cause   public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof[.]”

       While a passenger in a car that was the subject of a valid traffic stop,

the police removed Butler from the vehicle.2 See N.T., Waiver Trial,

10/13/15, at 17. “[A]bout 30 people,” id., at 40, on “a very small street”

id., at 18, were watching what was going on. According to Officer Ray

D’Amico, Butler “was yelling very loudly” “[g]et the eff [i.e., fuck] off of me.”

Id. Butler was “just out of control.” Id. And the crowd of observers was

“coming up yelling and screaming.” Id., at 41.

       Butler’s actions in loudly yelling, in front of a crowd of thirty people,

who were also yelling and screaming, on a small street, for the police
____________________________________________


2
  It was necessary to remove Butler from the vehicle after he tried to exit
the car when Officer Ray D’Amico shined a flashlight “inside of the
[passenger] door to illuminate the area” during the nighttime stop. N.T.,
Waiver Trial, 10/13/15, at 17. Butler “took a swing at the flashlight” and told
Officer D’Amico to “‘get that light out of my face, pussy.’” Id.

  While being transported to the police station, Butler informed Officer
Steven Toner that he “fuck[s] crackers like you in prison,” id., at 42, and
then threatened the officer’s child, telling him he would “fuck him up, too,”
id.



                                           -4-
J-S45020-17


officers to get the “[g]et the eff [i.e., fuck] off of me” constitutes the use of

obscene language “with intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof.” Accordingly, the Commonwealth

presented sufficient evidence to sustain the conviction under § 5503(a)(3).

      Butler’s final claim is his allegation that the Commonwealth violated

Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over in discovery

a “PARS” report, which is the Philadelphia Police Department Arrest Record,

and a “7548” report, a Complaint or Incident Report. In Brady, the Court

decided, “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.” Id., at 87.

      At trial, during the redirect examination of Officer Toner, the

Commonwealth sought to mark as Commonwealth’s Exhibit C-1 the “7548”

report, which was also referred to as the “48” report. See N.T., Waiver Trial,

10/13/15, at 49. Butler’s trial counsel stated:

      For the record, I don’t have a copy of this, Judge. I understand
      there are two CP [docket] numbers maybe that’s why. I’m not
      trying to say he’s [i.e., the prosecutor] trying to hide anything
      from me. I want to just have a copy, and then I have some
      questions with it.

Id. The court crier made a copy of the “7548” report for defense counsel and

handed it to her. See id., at 50. Defense counsel then recross-examined

Officer Toner.


                                      -5-
J-S45020-17


        On redirect examination, the Commonwealth referenced the “PARS”

report, see id., at 50, and defense counsel asked Officer Toner questions

about that report on recross-examination, see id., at 51-52. On re-redirect

examination, the prosecutor sought to mark it as Commonwealth’s Exhibit C-

2. See id., at 53. Defense counsel interjected, “I don’t have this either,

Judge. I don’t have it if you don’t give it to me. … If I can have a copy of

that. We never had a copy of that either.” Id. The following discussion

occurred:

              The court: Why isn’t the PARS part of discovery?

               The prosecutor: I have no idea. I have two files. All of
        this should have been uploaded on eDiscovery on two different
        ones. If I had known Counsel didn’t have it, I certainly would
        have gotten her anything she wanted that we have. I assumed
        all those documents were passed. Apparently not.

              Defense counsel: I don’t have either of those two
        documents. I actually met with Mr. Howell [the prosecutor]. He
        handed discovery over to me because I was newly assigned to
        the case because I was appointed by Your Honor. We actually
        came in here and that’s when he handed it over. There is no
        eDiscovery as far as I know.

              The court: But there wasn’t then, I think.

               The prosecutor: I’ve since put it on and I’ll also state
        that the 49[3], the copy and paste on the PARS, I see the 49
        sitting on Counsel’s desk.

              Defense counsel: This is the 49. It says nothing about it.

              The prosecutor: It’s all right there.
____________________________________________


3
    Some other type of police report.



                                           -6-
J-S45020-17



            The court: All right. Let’s proceed.

            Defense counsel: I don’t have the PARS, though.

            The court: We’ll get you a copy of the PARS.

            Defense counsel: I’ll stip[ulate] for purposes of the trial
      that this is the PARS. I didn’t have it. That’s why I asked that
      question before on cross.

Id., at 53-54.

      The re-redirect examination of Officer Toner continued briefly, see id.,

at 54-55, and then the prosecutor stated, “Nothing further, thank you,” id.,

at 55. Defense counsel responded, “I stip[ulate] to that. That was in the

PARS.” Id. The Commonwealth then moved C-1 and C-2 into evidence and

rested.

      At no point during trial did Butler claim a Brady violation. As the trial

court observes, “defense counsel elected to proceed without any further

discussion of the issue.” Trial Court Opinion, filed 12/16/16, at 6. Butler

raises this claim for the first time on appeal.

      The “[f]ailure to raise a contemporaneous objection to the evidence at

trial waives that claim on appeal.” Commonwealth v. Pearson, 685 A.2d

551, 555 (Pa. Super. 1996) (en banc) (citing 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.”)) (additional citation omitted). “Brady claims … present fact-

based judgments that cannot be adequately first made on appellate review.

That is why Brady challenges must be brought to the district court’s

                                      -7-
J-S45020-17


attention….” United States v. Rice, 607 F.3d 133, 142 (5th Cir. 2010)

(citation and internal quotation marks omitted). Accordingly, we need not

reach the merits of this issue.

      Judgment of sentence affirmed.

      President Judge Gantman joins the memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2017




                                    -8-
