Com. v. Mohler, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TERRY LYN MOHLER :
:
Appellant : No. 983 MDA 2019
Appeal from the Judgment of Sentence Entered February 11, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000095-2017
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED: FEBRUARY 5, 2020
Appellant, Terry Lyn Mohler, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his jury trial
conviction for recklessly endangering another person (“REAP”) and bench trial
conviction for reckless driving.1 We affirm.
The relevant facts and procedural history of this case are as follows. At
approximately 3:00 p.m. on July 15, 2016, Appellant completed his shift as a
PennDOT sign foreman. Appellant entered his PennDOT vehicle, a 2012 Ford
F550 crew cab truck, and proceeded to drive southbound on Route 61 in
Reading. Appellant had just passed Bellevue Avenue when he noticed a dirt
bike exit the parking lot at Ken’s Cycle Repair and turn onto Route 61
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1 18 Pa.C.S.A. § 2705 and 75 Pa.C.S.A. § 3736(a), respectively.
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southbound.
This portion of Route 61 contains two lanes for southbound traffic.
Appellant drove in the left lane, while the dirt bike traveled in the right lane.
Appellant observed the dirt bike did not have a license plate or any type of
lights or safety signals. Appellant thought the dirt bike was an illegal street
vehicle, so he pulled alongside and shouted to its driver, Isaac Morales
(“Victim”), to “get off the road.” (N.T. Trial Volume II, 12/13/18, at 470.)
Both vehicles stopped for a red light at the intersection of Route 61 and
Hartman Road. At that point, Victim spat on the passenger side window of
Appellant’s truck and sped away. Appellant pursued Victim southbound on
Route 61. Victim attempted to elude Appellant by crossing over the median
strip and traveling the wrong way in the northbound lanes. Appellant
continued the pursuit, however, positioning his vehicle over the median strip
so that he was partially in the southbound and northbound lanes.
Appellant caught up to Victim and hit the dirt bike with his truck. The
collision caused Victim to fall onto the road and sent the dirt bike careening
into oncoming traffic. The dirt bike came to a stop after it crashed into the
front bumper of a vehicle traveling northbound on Route 61, which was driven
by Joyce Dibuono. Ms. Dibuono’s passenger, her husband Benjamin,
immediately called for an ambulance to assist Victim. Ms. Dibuono watched
Appellant’s truck come to a stop in the middle of Route 61, and she decided
to exit her vehicle and speak with Appellant. When Ms. Dibuono asked
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Appellant why he hit the dirt bike, he responded: “[B]ecause the
kid…provoked him by spitting on his truck.” (N.T. Trial Volume I, 12/11/18,
at 174.)
On January 31, 2017, the Commonwealth filed a criminal information,
charging Appellant with REAP, reckless driving, aggravated assault,2 and
aggravated assault by vehicle.3 Appellant proceeded to a jury trial on
December 10, 2018, and the Commonwealth called multiple witnesses who
had observed Appellant’s pursuit of Victim.
On the second day of trial, the Commonwealth presented testimony
from Ms. Dibuono, followed by Mr. Dibuono. During Mr. Dibuono’s direct
examination, defense counsel requested a sidebar. Outside the presence of
the jury, the parties informed the court that Appellant had not received
handwritten statements that three of the witnesses, including the Dibuonos,
had provided to the Muhlenberg Township Police Department.4 The prosecutor
informed the court that the investigating officer, Detective Francis Hill, had
not given him the statements until earlier that day.
In light of this discovery violation, Appellant moved for dismissal of the
charges due to prosecutorial misconduct. The court deferred ruling on the
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2 18 Pa.C.S.A. § 2702(a)(1).
3 75 Pa.C.S.A. § 3732.1(a).
4 The third statement was from another Commonwealth witness, Ralph
Sterner, who testified on the first day of trial.
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motion and adjourned for the day to provide the parties with an opportunity
to review the handwritten statements. The court also noted that Appellant
could prepare a memorandum of law in support of his motion.
The next day, Appellant submitted a memorandum of law. In addition
to the Commonwealth’s failure to provide the handwritten statements,
Appellant claimed the Commonwealth had “lost” a videotaped statement that
Appellant gave to the police on the day of the accident. (Memorandum, filed
12/12/18, at 2-3.)
With the benefit of Appellant’s memorandum, the court conducted an in
camera hearing and received testimony from Detective Hill. Detective Hill
informed the court that his department had accidentally “overwritten” the
videotape containing Appellant’s statement. (N.T. Trial Volume I, 12/12/18,
at 232.) Detective Hill also testified that he could not explain why the
witnesses’ handwritten statements were left in a trial binder and not included
with the other discovery material. (Id. at 259.)
After receiving argument from counsel, the court denied Appellant’s
dismissal motion. The court acknowledged that the Commonwealth had
committed a discovery violation pursuant to Pa.R.Crim.P. 573, but the court
determined that the prosecutor had not committed “an intentional violation of
the rules.” (Id. at 289.) The court offered Appellant the option of requesting
a mistrial, which Appellant declined. Consequently, the court provided
Appellant with the ability to recall Mr. Sterner and the Dibuonos to raise any
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issues related to their handwritten statements. The court also explained that
it would give defense counsel “great latitude” with these witnesses to “get into
subjects that were either previously addressed or that you now need to
address based on the statements….” (Id. at 295.)
After the parties presented their remaining witnesses, the jury convicted
Appellant of REAP and acquitted him of aggravated assault and aggravated
assault by vehicle. Additionally, the court found Appellant guilty of the
summary offense of reckless driving. On February 11, 2019, the court
sentenced Appellant to eighteen (18) months’ probation. Appellant timely
filed a post-sentence motion on February 21, 2019, challenging the weight of
the evidence supporting his convictions. By order entered May 28, 2019, the
court denied Appellant’s post-sentence motion.
Appellant timely filed a notice of appeal on June 17, 2019. On June 20,
2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely filed his Rule
1925(b) statement on July 3, 2019.
Appellant now raises two issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING
[APPELLANT’S] MOTION TO DISMISS THE CHARGES
AGAINST HIM DUE TO PROSECUTORIAL MISCONDUCT.
WHETHER THE GUILTY VERDICTS FOR [REAP] AND
RECKLESS DRIVING WERE SUPPORTED BY THE WEIGHT OF
THE EVIDENCE.
(Appellant’s Brief at 9).
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In his first issue, Appellant relies on Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), for the proposition that a prosecutor’s
suppression of material evidence violates due process, regardless of whether
the prosecutor acted in good faith. Appellant also argues that a prosecutor’s
duty to disclose material evidence extends to evidence in the possession of
police agencies of the same government bringing prosecution. Based upon
the foregoing, Appellant concludes the Commonwealth’s discovery violations
warranted dismissal of the charges, pursuant to Rule 573(E). We disagree.
Pennsylvania Rule of Criminal Procedure 573 governs a trial court’s
power to sanction a party for the failure to comply with mandatory discovery
requirements:
Rule 573. Pretrial Discovery and Inspection
* * *
(E) Remedy. If at any time during the course of the
proceedings it is brought to the attention of the court that a
party has failed to comply with this rule, the court may order
such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing
evidence not disclosed, other than testimony of the
defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(E). “This provision gives the trial court broad discretion in
formulating remedies for a failure to comply with discovery requirements.
Accordingly, our standard of review of a trial court’s decision to sanction a
party under [Rule 573(E)] is whether the trial court committed an abuse of
discretion.” Commonwealth v. Galloway, 771 A.2d 65, 68 (Pa.Super.
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2001) (internal citations and quotation marks omitted).
Further, our Supreme Court has reiterated the general principles
surrounding claims of Brady violations:
Under Brady and subsequent decisional law, a prosecutor
has an obligation to disclose all exculpatory information
material to the guilt or punishment of an accused, including
evidence of an impeachment nature. To establish a Brady
violation, an appellant must prove three elements:
(1) the evidence at issue was favorable to the
accused, either because it is exculpatory or because it
impeaches; (2) the evidence was suppressed by the
prosecution, either willfully or inadvertently; and (3)
prejudice ensued.
The burden rests with the appellant to prove, by reference
to the record, that evidence was withheld or suppressed by
the prosecution. The evidence at issue must have been
material evidence that deprived the defendant of a fair trial.
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.
Brady does not require the disclosure of information that is
not exculpatory but might merely form the groundwork for
possible arguments or defenses, nor does Brady require the
prosecution to disclose every fruitless lead considered
during a criminal investigation. The duty to disclose is
limited to information in the possession of the government
bringing the prosecution, and the duty does extend to
exculpatory evidence in the files of police agencies of the
government bringing the prosecution. Brady is not violated
when the appellant knew or, with reasonable diligence,
could have uncovered the evidence in question, or when the
evidence was available to the defense from other sources.
Brady sets forth a limited duty, not a general rule of
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discovery for criminal cases.
Commonwealth v. Roney, 622 Pa. 1, 22-23, 79 A.3d 595, 607-08 (2013),
cert. denied, 574 U.S. 829, 135 S. Ct. 56, 190 L. Ed. 2d 56 (2014) (internal
citations and quotation marks omitted).
“[W]hile it is undoubtedly true that the trial court possesses some
discretion in fashioning an appropriate remedy for a Brady violation, that
discretion is not unfettered.” Commonwealth v. Burke, 566 Pa. 402, 415,
781 A.2d 1136, 1143 (2001). “It must be exercised in light of the competing
values weighed in the Brady analysis, and in light of the teachings in prior
cases involving similar concerns.” Id.
Because of the compelling societal interest in prosecuting
criminal defendants to conclusion, this Court has recognized
that dismissal of charges is an extreme sanction that should
be imposed sparingly and, relevant to the question here,
only in cases of blatant prosecutorial misconduct.
* * *
Dismissal of criminal charges punishes not only the
prosecutor…but also the public at large, since the
public has a reasonable expectation that those who
have been charged with crimes will be fairly
prosecuted to the full extent of the law. Thus, the
sanction of dismissal of criminal charges should be
utilized only in the most blatant cases. Given the
public policy goal of protecting the public from
criminal conduct, a trial court should consider
dismissal of charges where the actions of the
Commonwealth are egregious and where
demonstrable prejudice will be suffered by the
defendant if the charges are not dismissed.
Id. at 416, 781 A.2d at 1144 (internal citations omitted).
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Instantly, the trial court determined that the Commonwealth’s actions
did not warrant the dismissal of the charges against Appellant:
The [three, written witness] statements were first provided
to [Appellant] on the afternoon of the second day of trial, in
the middle of cross-examination of one of the three
witnesses and after the other two witnesses had already
testified and were excused. The court dismissed the jury
for the day to consider the implications of the late discovery.
* * *
As set forth in the notes of testimony, the court was willing
to declare a mistrial to allow for adequate review of the
material and trial preparation, which [Appellant] declined.
Moreover, the court afforded [Appellant’s] counsel broad
authority to examine the witnesses about the contents of
their written statements (including permission to re-call
excused witnesses), to question members of the police
department about the failure to provide the statements in a
timely manner, and to argue this issue during closing.
However, as the court explained on the record—outside the
presence of the jury—the Assistant District Attorney did not
know about these written statements until the second day
of trial, at which time he immediately notified [Appellant’s]
counsel and the court. Such conduct does not warrant
dismissal.
(Trial Court Opinion, filed October 2, 2019, at 2) (internal citation omitted).
Here, the record supports the trial court’s determination that the
prosecutor did not know about the discovery violation until trial, and the
prosecutor did not intentionally attempt to withhold the statements. Absent
more, the trial court correctly concluded that Appellant was not entitled to
dismissal of the charges. See Burke, supra at 419, 781 A.2d at 1146
(explaining “where there is no evidence of deliberate, bad faith overreaching
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by the prosecutor intended to provoke the defendant into seeking a mistrial
or to deprive the defendant of a fair trial, the proper remedy for the
Commonwealth’s failure to disclose exculpatory materials should be less
severe than dismissal”). Thus, the trial court did not abuse its discretion in
fashioning a remedy to the discovery violation under Rule 573(E), and
Appellant is not entitled to relief on his first issue. See Galloway, supra.
In his second issue, Appellant argues he did not create a danger to other
motorists; rather, Victim created the danger by riding a dirt bike that was not
street legal. Appellant claims he followed Victim’s dirt bike across the median
to warn oncoming traffic about the biker, and any risks Appellant created were
outweighed by the utility of his actions. Appellant insists Victim’s unsafe
driving created a critical situation, and it was Appellant’s duty as a PennDOT
employee to take actions to ensure the safety of the other motorists.
Moreover, Appellant maintains he could not have reasonably foreseen that his
attempt to maintain a safe roadway would result in an accident. Under these
circumstances, Appellant concludes his convictions are against the weight of
the evidence. Appellant’s claim is waived.
A concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b), that is not specific enough for the trial court to identify and
address the issue an appellant wishes to raise on appeal can result in waiver
of the issue. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006),
appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “The court’s review and
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legal analysis can be fatally impaired when the court has to guess at the issues
raised.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011),
appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011). “Thus, if a concise
statement is too vague, the court may find waiver.” Id. See also
Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa.Super. 2015)
(holding appellant waived his challenge to weight of evidence where his Rule
1925(b) statement failed to offer specific reasons why verdicts were against
weight of evidence).
Instantly, Appellant’s Rule 1925(b) statement presented his weight
issue as follows: “The guilty verdicts for the aforementioned charges were
contrary to the weight of the evidence presented at trial, in that the testimony
against defendant was contradictory and not credible or reliable.” (See Rule
1925(b) Statement, filed 7/3/19, at 1.) Significantly, the Commonwealth
presented nine witnesses over the course of two days. Appellant, however,
failed to identify the specific testimony now at issue, and the trial court was
left to guess what evidence Appellant sought to challenge on appeal. (See
Trial Court Opinion at 5.) We conclude Appellant’s second issue is waived on
this basis. See Freeman, supra; Hansley, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/05/2020
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