Com. v. Barton, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER BARTON :
:
Appellant : No. 879 WDA 2022
Appeal from the Judgment of Sentence Entered May 19, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001241-2020
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED: October 17, 2023
Appellant, Christopher Barton, appeals from the judgment of sentence
entered on May 19, 2022, following his bench trial convictions for driving
under the influence (DUI) of alcohol (high rate of alcohol), DUI (general
impairment), accident involving damage to unattended vehicles, reckless
driving, and failure to notify police.1 We affirm.
The trial court summarized the facts of this case as follows:
On December 20, 2019, [Pittsburgh Police] Officers [Joseph]
Mangiarelli and [Brett] Maloney responded to a hit-and-run
accident on Route 51 [near] Saw Mill Run [Boulevard], in front of
Pittsburgh Auto Dealership. At approximately 2:30 a.m., the
officers arrived at the scene and observed an unattended vehicle
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(b), 3802(a)(1), 3745(a), 3736(a), and 3746(a)(2),
respectively.
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that struck a Verizon utility pole and damaged two vehicles in the
Pittsburgh Auto Dealership lot.
At the scene, Officer Mangiarelli ran the vehicle’s registration plate
through the [National Crime Information Center database] and
learned that the vehicle was registered to [Appellant]. The officers
looked inside the vehicle and observed a cell[ular telephone] on
the driver side floor. During the investigation, Officer Maloney
spoke to witnesses who observed an individual running away from
the scene. The officer relayed through [police] radio that they
were looking for an individual of a certain description that had just
fled the area.
At 2:50 a.m., the responding officers were notified that Sergeant
[Michael] Douglas, detained an individual matching [Appellant’s]
description “staggering” on Library Road [which intersects with
Route 51]. [] Sergeant [Douglas] testified that [Appellant’s]
speech was slurred, and his answers were vague. In response to
questioning, [Appellant stated] he was “just going for a walk.”
Notably, [Appellant] was walking outside in 20-degree weather,
wearing a hoodie and jeans, and on a roadway in an industrial
area without any sidewalks. [Appellant] was located
approximately one and a half miles from the accident site.
Upon contact with [Appellant], the responding officers observed
that [Appellant’s] person and breath smelled moderately of
alcohol and that his speech was slurred and mumbled. The
officers confirmed [Appellant’s] identity verbally and [examined]
his driver’s license. During questioning[, Appellant] was vague in
his responses. [Appellant] told the officers that he was walking
home and when asked where he was coming from, [Appellant]
responded, “I don’t know.”
During this time, [Appellant] realized he did not have his cell[ular
tele]phone on him. The police called [Appellant’s cellular
telephone] using a number he provided and discovered
[Appellant’s] cell[ular tele]phone was [the device located on the
driver’s side floorboard inside the unattended vehicle discovered
by responding officers at the automobile dealership]. In addition,
[Appellant] identified himself on the [] voicemail message, which
further confirmed that the cell[ular tele]phone left inside the
vehicle belonged to [Appellant].
Officers detained [Appellant] and transported him [] for a [blood]
test[,] the results of which revealed that [Appellant] had a [blood
alcohol content] of 0.128 %.
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Trial Court Opinion, 12/7/2022, at *2-3 (unpaginated).
On August 12, 2021, following a bench trial, Appellant was convicted of
the aforementioned crimes. After the verdict, counsel for Appellant orally
moved for judgment of acquittal, challenging the sufficiency of the evidence.
Thereafter, Appellant filed a brief in support of his motion for judgment of
acquittal. When Appellant appeared for sentencing on May 19, 2022, the trial
court initially denied Appellant’s motion for judgment of acquittal and then
sentenced Appellant to an aggregate term of two to four years of
incarceration. Appellant filed a post-sentence motion on May 31, 2022. The
trial court denied relief by order entered on July 6, 2022. Appellant filed a
timely notice of appeal on August 3, 2022. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 7, 2022.
On appeal, Appellant presents the following issue for our review:
I. Whether there was sufficient evidence presented at trial to
prove that [Appellant] drove, operated, or was in actual
physical control of the movement of his vehicle the night in
question when officers did not see [Appellant] driving the
vehicle and he was apprehended approximately 1.5 miles
away from the accident scene[?]
Appellant’s Brief at 9.
Appellant argues that “all the evidence presented at trial was
circumstantial” and “the Commonwealth was unable to produce any direct
evidence that Appellant was ever in physical control of [the] vehicle” involved
in the incident at issue. Id. at 14. Appellant contends that each of his five
convictions required the Commonwealth to prove beyond a reasonable doubt
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that he was, in fact, the driver. Id. at 17. Appellant contends that none of
the investigating officers saw the accident and “the Commonwealth presented
no other witnesses or evidence indicating [Appellant] was anywhere near the
vehicle[.]” Id.
Additionally, in further support of his sufficiency argument, Appellant
asserts that the Commonwealth failed to disclose video footage from the
accident scene and police body cameras which the Commonwealth’s police
witnesses referred to at trial. Id. at 14. Appellant maintains that he made
both informal and formal requests for discovery of the alleged surveillance
before trial. Id. at 19. Moreover, the trial court granted Appellant relief and
directed the Commonwealth, both before and after trial, to turn over video
surveillance by orders entered on August 31, 2020 and March 2, 2022,
respectively. Id. The Commonwealth never produced the video footage and
never explained its failure to do so. Id. Appellant, therefore, argues that
“[t]he Commonwealth’s failure to produce this crucial videographic evidence,
or to account for its absence, at the very least, should have raised a concern
that such evidence, if presented, would have been favorable” to Appellant
because “[i]t certainly contained special information material to the issue of
whether [Appellant] was in fact the operator of the incident vehicle.” Id. As
such, citing Pennsylvania Suggested Standard Jury Instruction 3.21B,2
____________________________________________
2 Pursuant to Pennsylvania Suggested Standard Criminal Jury Instruction
3.21B, “[a] jury is allowed to draw a common-sense inference that [an] item
(Footnote Continued Next Page)
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Appellant asserts that the trial court “was permitted to, and arguably should
have, drawn a common-sense inference that … the video would have
contradicted the Commonwealth’s case in chief.” Id. at 19-20. Appellant
suggests "[f]or example, body camera footage might not have shown
[Appellant’s] cell[ular tele]phone was located in the vehicle [or, m]ore
importantly, video of the crash might have shown someone besides
[Appellant] in operation of the vehicle.” Id. at 20-21.
First, before examining the portion of Appellant’s sufficiency claim
pertaining to discovery, we are mindful that “[i]n conducting our review, we
consider all of the evidence actually admitted at trial and do not review a
diminished record.” Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super.
2003) (citation omitted). We have previously determined:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the factfinder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for that of the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
____________________________________________
would have been evidence unfavorable to that party” when “there is no
satisfactory explanation for [that] party's failure to produce an item,” and (1)
“the item is available to that party and not to the other”; (2) “it appears the
item contains or shows special information material to the issue”; and (3) “the
item would not be merely cumulative evidence.” Pa.SSJI (Crim) § 3.21B.
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beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Johnson, 833 A.2d 260, 262–263 (Pa. 2003) (case
citations omitted).3
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3 Here, Appellant was also convicted of accidents involving damage to
unattended property which states “[t]he driver of any vehicle which collides
with or is involved in an accident with any vehicle or other property which is
unattended resulting in any damage to the other vehicle or property shall
immediately stop the vehicle at the scene of the accident or as close thereto
as possible and shall then and there either locate and notify the operator or
owner of the damaged vehicle or other property of his name, address,
information relating to financial responsibility and the registration number of
the vehicle being driven or shall attach securely in a conspicuous place in or
on the damaged vehicle or other property a written notice giving his name,
address, information relating to financial responsibility and the registration
number of the vehicle being driven and shall without unnecessary delay notify
the nearest office of a duly authorized police department. Every stop shall be
made without obstructing traffic more than is necessary.” 75 Pa.C.S.A.
§ 3745. “Any person who drives any vehicle in willful or wanton disregard
for the safety of persons or property is guilty of reckless driving.” 75
Pa.C.S.A. § 3736. “The driver of a vehicle involved in an accident shall
immediately by the quickest means of communication give notice to the
nearest office of a duly authorized police department…” 75 Pa.C.S.A. § 3746.
We note, however, that aside from arguing that the Commonwealth failed to
prove he was driving, Appellant does not challenge any of the other elements
of the offenses for which he was convicted. Appellant does not refute that he
was intoxicated or otherwise challenge the results of his blood alcohol content
test. He does not dispute that there was damage to unattended vehicles, that
the vehicle in question was driven in willful or wanton disregard for the safety
of persons or property, and/or that the police were not called following the
accident. As such, we confine our analysis to whether the Commonwealth
introduced sufficient evidence that Appellant drove, operated, or was in actual
physical control of the motor vehicle discovered in the dealership lot.
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The DUI-general impairment statute provides that “[a]n individual may
not drive, operate or be in actual physical control of the movement of a vehicle
after imbibing a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(a)(1).
The statute providing for the crime of DUI (high rate of alcohol) states,
“[a]n individual may not drive, operate or be in actual physical control of the
movement of a vehicle after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individual's blood or breath is at least 0.10%
but less than 0.16% within two hours after the individual has driven, operated
or been in actual physical control of the movement of the vehicle.” 75
Pa.C.S.A. § 3802(b).
This Court has previously determined:
The term ‘operate’ requires evidence of actual physical control of
either the machinery of the motor vehicle or the management of
the vehicle's movement, but not evidence that the vehicle was in
motion. The Commonwealth can establish through wholly
circumstantial evidence that a defendant was driving, operating
or in actual physical control of a motor vehicle. Courts review a
combination of the following factors to determine whether a
person had ‘actual physical control’ of an automobile: the motor
running, the location of the vehicle, and additional evidence
showing that the defendant had driven the vehicle. A
determination of actual physical control of a vehicle is based upon
the totality of the circumstances.
Commonwealth v. Fallon, 275 A.3d 1099, 1105 (Pa. Super. 2022) (internal
citations and most quotations omitted). “Under the applicable standards, to
sustain a [DUI] conviction, the facts and circumstances established by the
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Commonwealth need not preclude every possibility of innocence.” Johnson,
833 A.2d at 264 (citation omitted). “Further, the Commonwealth [is] not
required to establish [an a]ppellant's guilt to a mathematical certainty.” Id.
(citation omitted). Instead,
the Commonwealth may establish, by the totality of the
circumstances, that a defendant was driving, operating or in
actual physical control of a motor vehicle. It is not necessary that
the vehicle itself must be in motion but that it is sufficient if the
operator is in actual physical control of either the machinery of
the motor vehicle or of the management of the movement of the
vehicle itself. As we [previously] noted[,] it seems illogical and
unreasonable to permit the operator of a vehicle to be exonerated
from the responsibility and liability for his actions simply because
there were no witnesses except the appellant who saw the
accident or the driving appellant.
Id. at 266 (case citations, quotations, and original brackets omitted). “Under
Pennsylvania law, an eyewitness is not required to establish that a defendant
was driving, operating, or was in actual physical control of a motor vehicle.”
Id. at 263. Finally, the Johnson Court recognized that
[t]aken to its ultimate conclusion, [Johnson’s] argument is that
when a driver involved in a motor vehicle accident gets out of the
vehicle before the police arrives and before anyone else could see
him, the driver cannot be convicted of any crimes associated with,
or resulting from the accident. This proposition has no basis in
Pennsylvania law and does not comport with the standards which
our courts utilize in reviewing sufficiency of the evidence claims.
Id. at 264.
Here, the trial court determined:
[T]he evidence presented at trial was credible and sufficient to
establish that [Appellant] drove or was in actual physical control
of a motor vehicle. The vehicle involved was registered to
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[Appellant] and his cell[ular tele]phone was located inside.
Moreover, [Appellant’s] description matched identically to the one
provided by [a] witness who observed the individual exit the
vehicle and proceed to run away from the accident and the police
located [Appellant] in the direction the witness indicated the
individual departed. Hence, the fact [Appellant] did not have his
[cellular tele]phone on him, was walking down Library [Road]
where there are no sidewalks in approximately 20-degree
temperatures around 3:00 a.m. in just a hoodie and jeans allows
for the reasonable inference that [Appellant] had recently been
driving his vehicle that night, crashed, and abandoned the scene
forgetting his cell[ular tele]phone inside the vehicle.
[Appellant’s] proximity to the accident scene, in which a vehicle
registered in his name was involved, and the short amount of time
that passed between the accident and [Appellant’s] apprehension
allows for the reasonable inference that [Appellant] was driving
his vehicle while intoxicated, crashed his vehicle and abandoned
the scene.
Trial Court Opinion, 12/7/2022, at *3-4 (unpaginated). Accordingly, the trial
court determined “that there was sufficient evidence presented to establish
that [Appellant] drove, operated, or was in actual physical control of his motor
vehicle[.]” Id. at *4 (unpaginated).
Upon our review, we agree with the trial court that Appellant’s challenge
to the sufficiency of the evidence should be rejected. The Commonwealth
presented overwhelming circumstantial evidence that Appellant drove,
operated, and/or was in actual control of the vehicle when he crashed his
vehicle into a utility pole and two unattended vehicles. Appellant does not
challenge the trial court’s reliance on evidence that an eyewitness observed a
single individual, matching Appellant’s description, flee from the vehicle and
scene following the accident. The eyewitness told police the direction the
individual fled and what he was wearing. Police apprehended Appellant a short
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time later in the general area specified by the eyewitness, wearing clothing
that matched the witness’s description. As such, we reject Appellant’s
assertion that no one saw him operating the vehicle. Moreover, the
Commonwealth presented sufficient, circumstantial corroborating evidence
confirming Appellant’s identity as the driver including his ownership of the
vehicle in question, his implausible excuse for walking in freezing
temperatures late at night in an industrial area with no sidewalks in close
proximity to the accident scene, and his hasty exit from the vehicle wherein
he left his cellular telephone on the floor of the driver’s side of the vehicle.
Accordingly, we reject Appellant’s suggestion that because he was not
discovered in or near the vehicle the Commonwealth failed to prove that he
was driving, operating, and/or in actual control of his vehicle. Considering the
totality of the evidence actually presented at trial, we conclude that Appellant
is not entitled to relief on his sufficiency of the evidence claim.
Next, we examine the portion of Appellant’s sufficiency claim that rests
upon the Commonwealth’s alleged discovery violation. Initially, we note that
Appellant relies exclusively upon the standard suggested missing evidence
jury instruction, Pa.SSJI (Crim) § 3.21B. Because Appellant has not cited
relevant legal authority nor developed any meaningful analysis in his appellate
brief, his contention is subject to waiver. See Pa.R.A.P. 2119(a);
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
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capable of review, that claim is waived.”). Additionally, Appellant’s reliance
on Pa.SSJI (Crim) § 3.21B is misplaced because this case proceeded to a
bench trial and was not heard before a jury. Proposed jury instructions in this
case, therefore, were wholly irrelevant. However, the trial court was well
aware of the ongoing dispute over the surveillance videos, with counsel for
Appellant raising the issue again during closing arguments and, therefore, we
presume that the trial court considered the alleged missing evidence during
its deliberation. See Commonwealth v. Harvey, 526 A.2d 330, 333 (Pa.
1987) (“[W]here a criminal case is tried before a judge sitting without a jury,
there is a presumption that [her] knowledge, experience and training will
enable [her] to disregard inadmissible evidence and other improper
elements.”).
In addition, our Supreme Court has previously recognized:
In Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)], the
United States Supreme Court declared that due process is
offended when the prosecution withholds evidence favorable to
the accused.... The Brady court established the obligation of the
prosecution to respond affirmatively to a request for production of
exculpatory evidence with all evidence material to the guilt or
punishment of the accused. Where evidence material to the guilt
or punishment of the accused is withheld, irrespective of the good
or bad faith of the prosecutor, a violation of due process has
occurred.
Commonwealth v. Weiss, 986 A.2d 808, 814 (Pa. 2009) (citation omitted).
Whether the trial court erred when ruling on an alleged Brady violation
presents a question of law, for which our standard of review is de novo and
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our scope of review is plenary. See Commonwealth v. Bagnall, 235 A.3d
1075, 1084 (Pa. 2020).
Moreover, our Supreme Court has stated:
The [United States] Supreme Court subsequently held that the
duty to disclose such evidence is applicable even if there has been
no request by the accused and that the duty encompasses
impeachment evidence as well as directly exculpatory evidence.
On the question of materiality, the [United States Supreme] Court
has noted that such evidence is material if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. The
materiality inquiry is not just a matter of determining whether,
after discounting the inculpatory evidence in light of the
undisclosed evidence, the remaining evidence is sufficient to
support the jury's conclusions. Rather, the question is whether
the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the
verdict.[4] Thus, there are three necessary components that
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4 More specifically, our Supreme Court in Weiss stated:
In determining whether a reasonable probability of a different
outcome has been demonstrated, the question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of
confidence. A “reasonable probability” of a different result is
shown when the government's suppression of evidence
undermines confidence in the outcome of the trial. The United
States Supreme Court has made clear that [such] materiality
standard is not a sufficiency of the evidence test. A Brady
violation is established by showing that the favorable evidence
could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict. Importantly, the
mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of
the trial, does not establish materiality in the constitutional sense.
(Footnote Continued Next Page)
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demonstrate a violation of the Brady strictures: the evidence was
favorable to the accused, either because it is exculpatory or
because it impeaches; the evidence was suppressed by the
prosecution, either willfully or inadvertently; and prejudice
ensued.
[Pennsylvania Rule of Criminal Procedure] 305 was promulgated
in response to the dictates of Brady. The rule provides, in
pertinent part, as follows:
(B) Disclosure by the Commonwealth
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant's attorney all
of the following requested items or information, provided
they are material to the instant case. The Commonwealth
shall, when applicable, permit the defendant's attorney to
inspect and copy or photograph such items.
(a) Any evidence favorable to the accused which is material
either to guilt or to punishment, and which is within the
possession or control of the attorney for the
Commonwealth.
Pa.R.Crim.P. 305(B)(1)(a). In the event of a violation of Rule 305,
the trial court may order the offending party to permit discovery
or inspection, may grant a continuance, or may prohibit the
offending 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. 305(E).
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In order to be entitled to a new trial for failure to disclose evidence
affecting a witness's credibility, the defendant must demonstrate
that the reliability of the witness may well be determinative of his
guilt or innocence. In assessing the significance of the evidence
withheld, a reviewing court must bear in mind that not every item
of the prosecution's case would necessarily have been directly
undercut had the Brady evidence been disclosed.
Weiss, 986 A.2d at 815 (internal citations, quotations and original brackets
omitted)
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Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (internal case
citations, quotations, and original brackets omitted).
The Burke Court further recognized:
As a Rule 305 matter, the trial court has discretion in framing an
appropriate remedy for a discovery violation. The “remedy”
provision in the Rule lists numerous appropriate courses of
remedial action, such as permitting discovery or inspection,
granting a continuance, or prohibiting introduction of evidence. It
is notable, however, that the Rule does not authorize an outright
dismissal of charges, except to the extent that the residual phrase,
“or ... such other order as [] deem[ed] just under the
circumstances,” could be said to encompass the extreme remedy
of discharge. It is equally notable that [Pennsylvania Supreme
Court] research has revealed [no line of cases] that approve or
require a discharge as a remedy for a discovery violation. In fact,
[] precedent[] support[s] the view that [] discharge [is] too
severe.
Thus, while 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. 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.
* * *
Because of the compelling societal interest in prosecuting criminal
defendants to conclusion, [our Supreme] Court has recognized
that dismissal of charges is an extreme sanction that should be
imposed sparingly and [] only in cases of blatant prosecutorial
misconduct. As [] Justice Cappy, in his Opinion Announcing the
Judgment of the Court in Commonwealth v. Shaffer, 712 A.2d
749, 752 (Pa. 1998), explained:
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.
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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 752; see also Commonwealth v. McElligott, 432 A.2d
587, 589 (Pa. 1981) (“The remedy of discharge without a fair and
complete fact-finding procedure is extreme and will not be invoked
absent deliberate bad faith prosecutorial misconduct”);
Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992)
(dismissal of charges is appropriate only where “prosecutorial
misconduct is intended to provoke the defendant into moving for
a mistrial, or where the conduct of the prosecutor is intentionally
undertaken to prejudice the defendant to the point of the denial
of a fair trial”).
Id. at 1143–1144 (original brackets and some case citations and quotations
omitted). “While [the Burke] Court [did] not minimize the ethical and legal
obligations of the prosecution to comply with lawful discovery requirements,
[the Court ultimately held that] where there is no evidence of deliberate, bad
faith overreaching 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.” Id. at 1146.
Here, the trial court twice directed, by order of court, the
Commonwealth to produce the requested videotaped surveillance. Such
actions were proper under Rule 305. At trial, Appellant averred that he still
had not received the videotaped surveillance but did not request a
continuance. Instead, Appellant argued that the trial court should draw a
common-sense inference that the withheld evidence was favorable to him.
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Appellant makes no showing that the missing video footage was material,
much less exculpatory or likely to undermine our confidence in the credibility
of the Commonwealth’s witnesses or the outcome of this case. Hence,
Appellant failed to meet the burden needed to prove his entitlement to a
discovery sanction. Moreover, even if an inference favorable to Appellant were
drawn, Appellant cannot overcome the overwhelming circumstantial evidence
that identified him as the driver and placed him in control of the abandoned
vehicle discovered by police. From our review of the record, there is simply
no evidence of deliberate, bad faith overreaching by the Commonwealth
intended to provoke Appellant into seeking a mistrial or intentionally deprive
him of a fair trial. Accordingly, we conclude the trial court did not err and the
second portion of Appellant’s sole appellate claim fails.
Judgment of sentence affirmed.
DATE: 10/17/2023
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