Com. v. Bey, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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