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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOEL LAMB,
Appellee No. 797 EDA 2014
Appeal from the Order Entered February 6, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006471-2013
BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 26, 2015
The Commonwealth of Pennsylvania appeals from the order entered on
February 6, 2014, granting Appellee, Joel Lamb’s, motions to suppress and
dismiss. We reverse and remand.
The factual background of this case is as follows. On June 30, 2013,
Pennsylvania State Police Troopers Edward Theodore and Andrew Hearn
were using a radar gun to monitor vehicles’ speeds on Route 313. The
speed limit for that location was 55 miles per hour. Troopers Theodore and
Hearn clocked Appellee traveling 65 miles per hour at 3:07 a.m.
Trooper Theodore pulled behind Appellee and followed him for
approximately one-half mile. During that time, Appellee never left his lane
of travel nor did he violate any other provision of the Motor Vehicle Code
(other than speeding). Trooper Theodore proceeded to pull Appellee over
* Former Justice specially assigned to the Superior Court.
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for the speeding violation. As he approached Appellee’s vehicle, Trooper
Theodore recognized the scents of cigar smoke and alcohol emanating from
the vehicle. Appellee informed Trooper Theodore that he was a bartender
and was coming home from work. He denied that he had been drinking.
Trooper Theodore noticed that Appellee’s eyes were bloodshot and
glassy. Trooper Theodore asked Appellee to take a portable breath test to
confirm that he had not been drinking. Although Appellee eventually agreed
to submit to the test, he did not blow a sufficient amount of air when given
the test. Trooper Theodore thereafter asked Appellee to exit the vehicle.
When Appellee exited the vehicle, he had some problems with his
balance. Trooper Theodore also realized that the smell of alcohol was
emanating from Appellee’s person, and not his vehicle. Trooper Theodore
then conducted the horizontal gaze nystagmus (“HGN”) field sobriety test
(“FST”).1 Appellee failed at all three attempts to perform the HGN test.
Specifically, Appellee followed the object with his whole head each time.
Furthermore, his eyes did not follow the object smoothly and, when his
pupils reached the corners of his eyes, they jerked. Trooper Theodore then
requested Appellee perform the heel-to-toe test.2 Appellee began the test
1
This test requires that an individual follow an object with his eyes while not
moving his head.
2
This test requires that an individual walk nine steps heel-to-toe along a
line, turn, and walk back in the same manner. Although Appellee told
(Footnote Continued Next Page)
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before directed; had several steps that were not heel-to-toe; took only eight
steps going from his original starting position; took an incorrect turn; and
took ten steps on his return journey.
Trooper Theodore next requested that Appellee perform the one-
legged stand.3 During his first attempt, Appellee used the car for balance.
During his second attempt, he was unable to keep his foot raised. Trooper
Theodore again requested Appellee take a portable breath test. Although
Appellee did not blow enough air into the machine for an accurate reading,
Trooper Theodore used the manual function of the machine to get a blood
alcohol content reading of .07. Thereafter, Appellee was placed under arrest
for suspicion of driving under the influence of alcohol.
The relevant procedural history of this case is as follows. On October
24, 2013, Appellee was charged via criminal information with driving under
the influence – general impairment,4 driving under the influence – high rate
of alcohol,5 and speeding.6 On November 13, 2013, Appellee filed an
_______________________
(Footnote Continued)
Trooper Theodore that he had an old ankle injury, he stated that it would not
impact his ability to perform the heel-to-toe test.
3
This test requires that an individual stand on one leg with his hands to his
side. See also note 2, supra.
4
75 Pa.C.S.A. § 3802(a)(1).
5
75 Pa.C.S.A. § 3802(b).
6
75 Pa.C.S.A. § 3362(a)(2).
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omnibus pretrial motion, which included a motion to dismiss for destruction
of evidence. In particular, it was revealed that Trooper Theodore’s
dashboard camera recording had been destroyed. Appellee’s omnibus
pretrial motion also included a motion to suppress the evidence because of
an alleged lack of reasonable suspicion to pull Appellee over for driving
under the influence. A combined evidentiary hearing was held on February
6, 2014. At the conclusion of the hearing, the trial court granted Appellee’s
motion to dismiss and, in the alternative, granted Appellee’s motion to
suppress. This timely appeal followed.7
The Commonwealth presents two questions for our review:
1. [Did the trial court err in granting Appellee’s motion to
dismiss based upon destruction of Trooper Theodore’s
dashboard camera recording?
2. Did the trial court err in alternatively granting Appellee’s
motion to suppress all evidence based upon an alleged
violation of Appellee’s right to be free from unreasonable
searches and seizures?]
Commonwealth’s Brief at 4.
The Commonwealth contends that the trial court erred in granting
Appellee’s motion to dismiss. In his motion, Appellee argued that the
7
On March 6, 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). On March 10, 2014, the Commonwealth filed its
concise statement. On April 16, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in the Commonwealth’s
concise statement.
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Commonwealth violated his due process rights in failing to preserve the
dashboard camera recording. “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).
Our Supreme Court summarized the relevant legal principles that
govern a prosecutor’s obligation to avoid the suppression or loss of
exculpatory evidence consistent with the Due Process Clause of the United
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).
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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”].
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, Appellee admits that he is unable to prove that the
Commonwealth acted in bad faith in destroying the recording. He argues
instead that the recording was materially exculpatory evidence and,
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therefore, whether the police acted with bad faith is immaterial when
determining if his right to due process was violated. The trial court agreed
and found that the recording was materially exculpatory for two reasons.
First, it found that the recording would show whether Appellee committed
any traffic violations after Trooper Theodore pulled behind him that would
indicate he was possibly intoxicated. Second, it found that the recording
was the only way to show whether Appellee had passed the FSTs
administered by Trooper Theodore.
The Commonwealth contends that the evidence was not materially
exculpatory as the recording would not definitely show whether Appellee
passed all of the FSTs given by Trooper Theodore. Furthermore, the
Commonwealth argues that the recording was immaterial to the reasonable
suspicion analysis as Trooper Theodore’s observation of Appellee speeding
was sufficient to pull him over, the speeding violation would not have been
captured by the recording, and reasonable suspicion to investigate driving
under the influence emerged from Appellant’s bloodshot eyes and the odor
of alcohol emanating from Appellee’s person.
We reject the trial court’s rationale that the recording was materially
exculpatory because it would have shown whether Appellee was weaving
while Trooper Theodore was following him. Even if the video showed that
Appellee were not weaving, as discussed in more detail below, Trooper
Theodore had probable cause to pull Appellee over for the speeding
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violation. Thus, the recording was immaterial when considering whether the
traffic stop was lawful.
Having determined that the recording was not materially exculpatory
because of what it may have shown prior to the stop, we turn to whether the
recording was materially exculpatory for what it may have shown during the
traffic stop. The facts in this case are similar to the facts in
Commonwealth v. Spotti, 94 A.3d 367 (Pa. Super. 2014) (en banc). In
Spotti, the defendant was involved in a motor vehicle accident while being
pursued by police. Id. at 369. The police officer who was chasing Spotti did
not preserve the recording of the chase because, he said, it did not show the
accident at issue in the case. Id. at 382.
Spotti argued that the recording was materially exculpatory evidence
as it may have shown that one of the other drivers involved in the crash was
driving recklessly. This Court rejected that argument and held that the
recording was potentially useful evidence. Id. at 383-384. Specifically, this
Court held that Spotti’s “claim that the recording may have depicted [the
other driver] engaging in unsafe driving is purely speculative. The mere
possibility that the recording might have depicted events differently does not
establish materiality.” Id. at 383 (internal quotation marks and citation
omitted).
The case sub judice is similar. The recording may have depicted
Appellee passing the FSTs administered by Trooper Theodore; however, such
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a claim is purely speculative. The fact that the recording may have depicted
events differently than Trooper Theodore’s testimony does not prove
materiality.
We find instructive a decision of the Supreme Court of the United
States. 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
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.
As in Fisher, the recording in this case would not have proven
Appellee’s innocence. Instead, as in Fisher, the recording would have been
subject to testing, i.e., viewing, in order to ascertain its contents. Thus, as
in Fisher, the recording in this case was plainly potentially useful evidence
and not materially exculpatory evidence.
We also find persuasive the decision of the Court of Appeals of
California, Fourth District, Division 3 in California v. Alvarez, 176 Cal. Rptr.
3d 890 (App. 4 Dist. 2014). In Alvarez, surveillance video was destroyed
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which may have shown that two defendants in a robbery case were not
involved with the third defendant. The appellate court held that such
evidence was not materially exculpatory. Id. at 902. Instead, the court
found that the evidence was potentially useful under Youngblood. Id. at
902. Accordingly, it held that the defendants were required to show bad
faith on the part of the state in order to have the charges dismissed. Id.
We also find persuasive the decision of the United States District Court
for the Western District of Missouri in United States v. Butler, 2011 WL
5387535 (W.D. Mo. Sept. 29, 2011), adopted, 2011 WL 5374578 (W.D.
Mo. Nov 07, 2011). In Butler, two officers pursued the defendant. Id. at
*1. That pursuit was recorded by their dashboard camera. Id. One year
later, the video was destroyed. Id. at *2. Butler filed a motion to dismiss
arguing that the failure of the officers to preserve the dashboard recording
violated his right to due process. Id. The United States District Court for
the Western District of Missouri found that the dashboard recording was
merely potentially useful evidence, and not materially exculpatory evidence.
Id. As Butler could not prove bad faith, his motion to dismiss was denied.
Id. at *3.
As in Alvarez and Butler, the video in the instant case was merely
potentially useful and not materially exculpatory. There was no evidence
presented that the recording would definitively show that Appellee passed
the FSTs. To the contrary, at oral argument Appellee admitted that whether
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the video would be exculpatory would depend on the quality of that video
and what actually occurred during the traffic stop. It is equally likely that
the recording would have corroborated Trooper Theodore’s testimony, i.e.,
Appellee failed each of the FSTs. In its Rule 1925(a) opinion, the trial court
agreed, noting that “Appellee did not know that the video would either bear
out his version of everything that happened that night or would bear out
[Trooper Theodore’s] version.” Trial Court Opinion, 4/16/14, at 2.
Accordingly, we conclude that the trial court erred as a matter of law
in finding that the recording was materially exculpatory evidence. Instead,
the record reflects that the recording was merely potentially useful evidence.
Therefore, Appellee was required to show that the Commonwealth acted in
bad faith by destroying the recording in order to have the charges
dismissed. As Appellee concedes that he is not able to prove bad faith, the
trial court erred by granting the motion to dismiss premised on a violation of
Appellee’s right to due process of law.
We now turn to the trial court’s alternative determination, i.e., that
dismissal of the charges was warranted under Pennsylvania Rule of Criminal
Procedure 573(E). That rule provides that:
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 [its discovery obligations], 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.
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Pa.R.Crim.P. 573(E). “Although not expressly included in the list of
remedies, a trial court does have the discretion to dismiss the charges
[under Rule 573(E)], but only for the most extreme and egregious
violations.” Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa. Super.
2011), appeal denied sub. nom. Commonwealth v. Styers, 24 A.3d 864
(Pa. 2011) (citation omitted); see Commonwealth v. Smith, 955 A.2d
391, 394 (Pa. Super. 2008) (en banc) (citation omitted).
In this case, Appellee de facto admits that this is not an extreme and
egregious violation of Rule 573 sufficient to warrant dismissal. Specifically,
Appellee admits that the Commonwealth’s destruction of the recording does
not rise to the level of bad faith. If the destruction were not done in bad
faith then certainly the Commonwealth’s failure to comply with its discovery
obligations, by destroying the recording, was likewise not extreme and
egregious. Accordingly, we conclude that the trial court abused its discretion
in dismissing the charges under Rule 573(E). The trial court had other
options available in order to remedy the discovery violation. A lesser
sanction would have been more appropriate in these circumstances. As we
conclude that both rationales given by the trial court for dismissal of the
charges were erroneous, we reverse the order of the trial court granting
Appellee’s motion to dismiss the charges.
We next consider the trial court’s suppression of the evidence gathered
by Trooper Theodore. “Our standard of review in addressing a challenge to
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the [grant] 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. Stem, 96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted). “[O]ur
scope of review is limited to the factual findings and legal conclusions of the
[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).
“[W]e are limited to considering only the evidence of the prevailing party,
and so much of the evidence of the non-prevailing party as remains
uncontradicted when read in the context of the record as a whole.” Id.
“As [this Court has] explained, the Fourth Amendment to the United
States Constitution and Article I, Section 8 of the Pennsylvania Constitution
protect citizens from unreasonable searches and seizures.”
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal
alteration and quotation marks omitted). The burden is on the
Commonwealth to prove, by a preponderance of the evidence, that the
evidence seized from Appellee was legally obtained. See Commonwealth
v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d
118 (Pa. 2013) (citation omitted). Probable cause is required to conduct a
traffic stop when the infraction at issue does not require any further
investigation. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.
2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (citation omitted).
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The Commonwealth contends that the trial court erred by granting
Appellee’s motion to suppress the evidence gathered during the traffic stop.
It argues that Trooper Theodore had probable cause to pull Appellee over
because of the speeding violation. It further contends that once Trooper
Theodore pulled Appellee over for speeding, he properly gathered the
requisite reasonable suspicion to extend the traffic stop and to ascertain
whether Appellee was driving under the influence of alcohol.
In this case, the trial court found that the traffic stop was conducted in
order to investigate a DUI – thereby requiring Trooper Theodore to have
reasonable suspicion that Appellee was driving under the influence. See
Commonwealth v. Weaver, 76 A.3d 562, 568 (Pa. Super. 2013), aff’d,
2014 WL 6750608 (Pa. Dec. 1, 2014) (per curiam) (requiring reasonable
suspicion to pull a suspect over for driving under the influence). This mixed
finding of fact and conclusion of law, however, is not supported by the
record and is contrary to controlling Pennsylvania authority. The record is
clear that Trooper Theodore pulled Appellee over for the speeding violation.
See N.T., 2/6/14 v.I, at 37 (Trooper Theodore stating that the only reason
he pulled Appellee over was for the speeding violation). 8 Although Trooper
Theodore followed Appellee for approximately one-half mile after originally
observing the speeding violation, this distance was reasonable. It is
8
The notes of testimony of the suppression hearing are in two volumes. We
cite to volume I as v.I and to volume II as v.II.
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impossible to pull a vehicle over in a matter of yards when that vehicle is
traveling at 65 miles per hour. Rather, it takes some time to pursue the
vehicle, determine that it is safe to pull the vehicle over, and then effectuate
the traffic stop. Therefore, we conclude that the record does not support the
trial court’s finding. Instead, the record establishes that the traffic stop was
initiated in response to Appellee’s speeding violation. Trooper Theodore
clearly had probable cause to stop Appellee for the speeding violation as his
radar gun registered Appellee’s vehicle going 65 miles per hour in a 55 miles
per hour zone.
Although Trooper Theodore had probable cause to pull Appellee over,
that does not end our inquiry. As this Court has explained:
When conducting a routine traffic stop, an officer may request a
driver’s license and vehicle registration, run a computer check
and issue a citation. Upon producing a valid driver’s license and
registration, the driver must be allowed to proceed on his way,
without being subject to further delay by police for additional
questioning. In order to justify detaining the driver for further
questioning, the officer must have reasonable suspicion of illegal
transactions in drugs or of any other serious crime.
Commonwealth v. Grosso, 672 A.2d 792, 794 (Pa. Super. 1996) (internal
alteration, citations, and quotation marks omitted).
As this Court has explained:
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. . . . In assessing
the totality of the circumstances, courts must also afford due
weight to the specific, reasonable inferences drawn from the
facts in light of the officer’s experience and acknowledge that
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innocent facts, when considered collectively, may permit the
investigative detention.
The determination of whether an officer had reasonable
suspicion . . . is an objective one, which must be considered in
light of the totality of the circumstances.
Clemens, 66 A.3d at 379 (ellipsis and citation omitted).
In this case, Trooper Theodore had reasonable suspicion to believe
that criminal activity was afoot, i.e., Appellee was driving under the
influence of alcohol. Specifically, Trooper Theodore testified that when he
approached the vehicle he smelled alcohol emanating from it. See N.T.,
2/6/14 v.I, at 37. Furthermore, Trooper Theodore testified that he observed
that Appellee had glassy and bloodshot eyes. See N.T., 2/6/14 v.II, at 4.
This information gave Trooper Theodore reasonable suspicion to believe that
Appellee was driving under the influence. See Commonwealth v. Segida,
985 A.2d 871, 879 (Pa. 2009). Therefore, Trooper Theodore had lawful
justification to request that Appellee perform various FSTs. When Appellee
failed those FSTs, Trooper Theodore obtained probable cause to arrest
Appellee for driving under the influence. See Commonwealth v. Cauley,
10 A.3d 321, 327 (Pa. Super. 2010). Accordingly, Trooper Theodore did not
violate Appellee’s right to be free from unreasonable searches and seizures.
The trial court’s conclusion to the contrary was an error of law and we
therefore reverse the order granting Appellee’s motion to suppress.
In sum, we conclude that the recording of the traffic stop was
potentially useful evidence and not materially exculpatory evidence.
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Appellee was therefore required to prove that the Commonwealth acted in
bad faith by destroying that evidence. As Appellee conceded during oral
argument, he cannot prove that the Commonwealth acted in bad faith.
Likewise, the Commonwealth’s failure to produce the recording was not such
an egregious violation of Rule 573 to warrant dismissal of the charges.
Thus, the trial court erred by granting Appellee’s motion to dismiss.
Furthermore, we conclude that the trial court erred in finding that Trooper
Theodore pulled Appellee over for suspicion of driving under the influence.
Instead, he was pulled over for speeding and Trooper Theodore later
developed, because of the odor of alcohol, combined with bloodshot and
glassy eyes, reasonable suspicion to suspect that Appellee may have been
driving under the influence of alcohol. Accordingly, the trial court erred by
alternatively granting Appellee’s motion to suppress.
Order reversed. Case remanded. Jurisdiction relinquished.
Panella, J., joins this memorandum.
Fitzgerald, J., notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2015
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