Com. v. Keffer, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum), at 1-3.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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