Com. v. Cade, K. ( 2015 )

J-S02022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KRISTOFER CARL CADE,
Appellant No. 95 EDA 2014
Appeal from the Judgment of Sentence of December 6, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000090-2013
BEFORE: MUNDY, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 10, 2015
Appellant, Kristofer Carl Cade, appeals from the judgment of sentence
entered on December 6, 2013, following his stipulated bench trial conviction
for persons not to possess a firearm.1 On appeal, counsel filed an
application to withdraw from representation pursuant to Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v.
California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s
behalf. Upon careful consideration, we grant counsel leave to withdraw and
affirm the judgment of sentence.
The trial court aptly summarized the facts and procedural history of
this case as follows:
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18 Pa.C.S.A. § 6105.
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On November 11, 2012, Officer [David] Wiley of the
Abington Police Department conducted a traffic stop of a
silver Chevrolet Tahoe with a Pennsylvania license plate
number GPW7435, when it went through a steady red light.
[Appellant was a passenger in the vehicle.] At the time of
the traffic stop, the officer detected an odor of marijuana
and observed a partially burnt marijuana cigar.
Officer Wiley conducted a search incident to arrest due
to an active [arrest] warrant on Appellant. As a result of
that search, Officer Wiley found a firearm, a silver and black
Taurus model PT92AF. The firearm was a semi-automatic
9-millimeter pistol and it was operable. The firearm was
loaded with 15 rounds in the magazine and one round in the
[chamber].
Appellant has a prior conviction for possession with
intent to deliver for importing cocaine, a felony offense
which prohibits Appellant from possessing a firearm and
makes him a person not to possess a firearm.
On December 6, 2013, [after waiving his right to a jury
trial and stipulating to the aforementioned facts, the trial
court found Appellant guilty of firearm possession and
sentenced] Appellant [to 3½ to 10 years of imprisonment].
A timely appeal was filed on December 26, 2013. In
response, [the trial court] issued an order directing
Appellant to file a concise statement of errors complained of
on appeal in conformance with Pa.R.A.P. 1925(b) (“1925(b)
statement”). Appellant did not file a 1925(b) statement,
and instead requested an extension of time. An extension
was granted, allowing Appellant an additional 30 days from
January 24, 2014. Appellate counsel did not comply, and
on March 5, 2014, [the trial court] authored an [o]pinion
stating that counsel’s failure to file a 1925(b) statement
precluded a meaningful review. Subsequently, appellate
counsel filed a petition for limited remand with [this Court].
On May 5, 2014, [this Court] remanded the case back to
[the trial court] for 60 days for the filing of a 1925(b)
statement and a corresponding [Pa.R.A.P.] 1925(a)
[o]pinion. On May 19, 2014, appellate counsel filed a
1925(b) statement and [the trial court filed an opinion on
May 28, 2014].
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Trial Court Opinion, 5/28/2014, at 1-2.2
On appeal, counsel filed a purported Anders brief in this Court and an
accompanying application to withdraw as counsel. The Anders brief
presents two potential issues for our review:
Did the trial court manifestly abuse its discretion and
commit reversible error when it denied Appellant’s motion
to suppress evidence obtained from a traffic stop that
Appellant contends was made without probable cause?
Did the trial court manifestly abuse its discretion and
commit reversible legal error when it refused to make an
inference adverse to the Commonwealth where the video
recording of Appellant’s traffic stop was lost by the police?
Appellant’s Brief at 4 (complete capitalization omitted).
“Initially, we note that we may not address the merits of the issue
raised on appeal without first reviewing the request to withdraw.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy of the brief
to the defendant; and 3) advise the defendant that he or she has the right to
retain private counsel or raise additional arguments that the defendant
deems worthy of the court's attention. Id. (citation omitted).
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2
The trial court’s opinion is not paginated. For ease of reference, we have
supplied page numbers to our citations.
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Herein, counsel's petition to withdraw from representation states that
he reviewed the record and concluded that the appeal is frivolous.
Additionally, counsel notified Appellant that he was seeking permission to
withdraw and furnished Appellant with copies of the petition to withdraw and
Anders brief, and advised Appellant of his right to retain new counsel or
proceed pro se to raise any points he believes worthy of this Court's
attention.3 Accordingly, counsel has satisfied the procedural requirements of
Anders.
Having concluded that counsel has complied with the procedural
mandates of Anders, we now determine whether counsel's Anders brief
meets the substantive dictates. In the Anders brief that accompanies
court-appointed counsel's petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations to the record;
(2) refer to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel's conclusion that the appeal is frivolous;
and (4) state counsel's reasons for concluding that the appeal is frivolous.
Id. Counsel should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that the appeal
is frivolous. Id. (citation omitted).
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3
Appellant has not responded to counsel’s petition to withdraw.
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Instantly, counsel provided the facts and procedural history of the
case. Based upon his review, counsel concludes that suppression was not
warranted because police had probable cause to stop the vehicle at issue for
a violation of the Motor Vehicle Code. Appellant was a passenger in a car
that proceeded through a red light in contravention of 75 Pa.C.S.A.
§ 3112(a)(3)(i). Appellant’s Brief at 23. Appellant also contends that the
trial court erred by failing to draw an adverse inference against the
Commonwealth because the police officer’s dashboard camera video was
destroyed prior to trial. However, counsel concludes that the trial court
“found that the video recording was lost as a result of a technical error”
which occurred “when a police technician attempted to download the file
containing the video recording onto a compact disk or a USB driver … that
rendered the video file unusable.” Id. at 30. Counsel notes, the trial court
found “that the Abington Police Department was not at fault for [the video’s]
loss.” Id. Further, counsel maintains that the trial court “also determined
that the lost video recording did not contain any exculpatory evidence.” Id.
Based upon the foregoing, we conclude that counsel has complied with the
minimum requirements of Anders. We now turn to the issues presented on
appeal.
In his first issue presented, Appellant contends:
[The trial court] erroneously ruled that there was
sufficient cause for Officer Wiley to stop [the] Chevrolet
Tahoe in Abington Township [on the day in question] where
[Appellant] contends that the controlling traffic signal was
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green when the Tahoe went through the intersection of
Mount Carmel Avenue and Limekiln Pike. As a result,
[Appellant] contends, the stop of his friend’s silver Tahoe
lacked probable cause, was illegal, and any evidence that
was discovered following that illegal stop was subject to
suppression as the fruit of the poisonous tree.
Appellant’s Brief at 18.
“Our standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court's
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v.
McAdoo, 46 A.3d 781, 783 (Pa. Super. 2012). “[T]he reviewing court may
consider only the Commonwealth's evidence and so much of the evidence for
the defense as remains uncontradicted when read in the context of the of
the entire record.” Commonwealth v. Lagenella, 83 A.3d 94, 98 (Pa.
2013). “[I]t is exclusively the province of the suppression court to
determine the credibility of the witnesses and weight to be accorded their
testimony.” Commonwealth v. Krisko, 884 A.2d 296, 299 (Pa. Super.
2005).
A police officer has the authority to stop a vehicle when he or she has
reasonable suspicion that a violation of the motor vehicle code has taken
place, for the purpose of obtaining necessary information to enforce the
provisions of the code. Commonwealth v. Brown, 64 A.3d 1101, 1105
(Pa. 2013), citing 75 Pa.C.S.A. § 6308(b). “However, if the violation is such
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that it requires no additional investigation, the officer must have probable
cause to initiate the stop.” Id. (citation omitted; original emphasis
omitted).
Here, the trial court determined that Officer Wiley had probable cause
to conduct a vehicular stop of the car in which Appellant was riding because
the driver of the vehicle drove through a steady red light. Trial Court
Opinion, 5/28/2014, at 3-5. The trial court credited Officer Wiley’s version
of events. Id. at 4. Officer Wiley testified that he was positioned directly
behind the silver Chevrolet when he witnessed it travel through a steady red
light. Id. More specifically, Officer Wiley testified that while the car initially
veered to the right as if to turn onto Limekiln Pike when the traffic light
displayed a right green arrow, the car veered back quickly to the left and
continued straight on Mount Carmel Avenue. Id. However, the light
remained red for traffic continuing straight and, thus, Officer Wiley instituted
a traffic stop for running a red light. Id.
Upon review of the record and based upon our standard of review, we
discern no abuse of discretion in denying Appellant’s suppression motion.
Officer Wiley had probable cause that a motor vehicle violation had occurred.
“Vehicular traffic facing a steady red signal alone shall stop at a clearly
marked stop line, or if none, before entering the crosswalk on the near side
of the intersection, or if none, then before entering the intersection and shall
remain standing until an indication to proceed is shown[.]” 75 Pa.C.S.A.
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§ 3112 (a)(3)(i). Officer Wiley testified that there was a steady red light at
the intersection at issue, the driver of the silver Chevrolet started to move
right as a green arrow indicated, but then veered left and went straight
through the red light. Here, the trial court credited the police officer’s
version of events over Appellant’s account of the incident. We will not usurp
those credibility determinations. Because Officer Wiley had probable cause
that a motor vehicle code violation occurred, the vehicular stop was
appropriate. The Anders brief does not challenge any ensuing search or
seizure and, based upon our independent review of the record, we find that
they conformed with the law. Accordingly, the trial court’s denial of
suppression was supported. Hence, Appellant’s first issue fails.
In his next issue presented, Appellant claims the trial court abused its
discretion when it “failed to take [a]n inference adverse to the
Commonwealth as a result of the destruction [by the Abington Police
Department] of the video recording of [] the traffic stop of the silver
Chevrolet Tahoe in which [Appellant] was riding[.]” Appellant’s Brief at 25.
Appellant suggests the inference was necessary as a remedy for the alleged
spoliation. Id. at 26.
Our Supreme Court summarized the relevant legal principles that
govern the Commonwealth’s obligation to avoid the suppression or loss of
exculpatory evidence consistent with the Due Process Clause of the United
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States 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
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,
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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”].
Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (emphasis added). 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.” Id. at 58.
In this case, the trial court “found that the video did not contain any
exculpatory evidence.” Trial Court Opinion, 5/28/2014, at 6. The trial court
“concluded that the video from the dash[board] cam[era] was not
retrievable due to no fault of Officer Wiley.” Id. The trial court’s
determinations were “based on Officer Wiley’s credible testimony, discerned
from the officer’s demeanor and lack of motive to be untruthful.” Id. Upon
review, we agree.
Officer Wiley testified that he and a computer technician “were
attempting to remove [the video] from [the police computer] server” when
they “ran into an error and for some reason the video was purged from the
system[.]” N.T., 8/29/2013, at 9. He testified that the error was not the
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result of deliberate misconduct. Id. at 10. Officer Wiley said this was the
first time he had contact with Appellant and he had no reason to be
dishonest about his dealings with Appellant. Id. at 11.
In this case, there was no evidence presented that the police
dashboard recording would have definitively shown that the vehicle in which
Appellant was riding did not drive through a steady red light. Indeed, no
one saw the content of the video before it was lost. It is equally likely that
the recording would have corroborated Officer Wiley’s version of events. At
best, the video in the instant case was merely potentially useful and not
materially exculpatory. Therefore, Appellant was required to show that the
Commonwealth acted in bad faith by destroying the recording. The trial
court determined, and the record confirms, that Officer Wiley did not destroy
the video in bad faith, but its damage resulted from a technical error. Thus,
we reject Appellant’s second claim as presented.
Further, after an independent review of the entire record, we see
nothing that might arguably support this appeal. See Commonwealth v.
Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the
Anders brief triggers the duty of our Court to conduct an independent
review of the entire record to make sure counsel has fully represented his
client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly,
we affirm Appellant’s judgment of sentence and grant counsel’s petition for
leave to withdraw appearance.
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Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
Judge Wecht joins this memorandum.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
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