J-A15044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. DOTSKO
Appellant No. 2580 EDA 2015
Appeal from the Judgment of Sentence August 4, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-SA-0000279-2014
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 09, 2016
Michael J. Dotsko (“Appellant”) appeals pro se from the judgment of
sentence entered in the Lehigh County Court of Common Pleas following his
conviction for vehicle turning left.1, 2 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On August 8, 2014, at approximately 7:55 p.m., Corporal Roger L. Miller of
the Upper Saucon Township Police Department was stopped at a traffic light
in an unmarked patrol vehicle at the intersection of Oakhurst Drive and
Route 145. N.T., 8/4/2015, at 24-25. Corporal Miller observed a grey
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1
75 Pa.C.S. § 3322.
2
Appellant was originally represented by counsel, but fired his lawyer on
February 5, 2015. The court granted counsel’s petition to withdraw on
February 25, 2015.
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Honda with a New Jersey license plate across the intersection from him. Id.
at 26. When the light turned green, the Honda turned left while Corporal
Miller was beginning to cross the intersection. Id. This forced Corporal
Miller to brake rather abruptly to avoid hitting the car. Id. Corporal Miller
pulled over the vehicle and identified Appellant as the driver. Id. at 27.
Corporal Miller had a camera on his vehicle (“dash cam”) at the time. 3 Id. at
29.
On October 13, 2014, after a hearing, District Justice Daniel Trexler
found Appellant guilty of vehicle turning left. On October 20, 2014,
Appellant appealed to the Lehigh County Court of Common Pleas. On
August 4, 2015, the court conducted a trial, in which Corporal Miller
testified, the dash cam recording was admitted into evidence, and Chief
Robert Coyle testified that he downloaded the video footage recorded from
the dash cam. The court found Appellant guilty of vehicle turning left and
sentenced him to pay the costs of prosecution, a $25.00 fine and a $10.00
EMS fine.
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3
The dash cam was designed so that it constantly recorded, then deleted
video after 30 seconds had passed, unless the officer activated his
emergency lights. This feature allowed Corporal Miller to save the recorded
video of Appellant from 30 seconds before he activated his lights and
onward. N.T., 8/4/2015, at 29.
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On August 27, 2015, Appellant filed a timely notice of appeal. The
court did not order, and Appellant did not file, a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
1. DID THE COMMONWEALTH FAIL TO PRESENT
SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE
DOUBT THAT THE APPELLANT WAS GUILTY OF VIOLATING
“VEHICLE TURNING LEFT” GIVEN THAT:
A. THE FIRST TWENTY-FIVE SECONDS OF THE
COMMONWEALTH’S OWN VIDEO DO NOT SHOW
[APPELLANT], HIS VEHICLE’S FRONT LICENSE PLATE
OR HIS VEHICLE’S OTHERWISE HIGHLY VISIBLE
ORANGE AND WHITE STATE OF NEW JERSEY
WINDSHIELD INSPECTION STICKER?
B. THE SCREEN SHOT TAKEN OF THE ONE AND ONLY
FRAME OF THE COMMONWEALTH’S VIDEO IN WHICH
A FRONT LICENSE PLATE IS PARTIALLY LEGIBLE
ESTABLISHES THAT IT IS NOT [APPELLANT’S]
LICENSE PLATE?
C. THE APPELLANT TESTIFIED AT LENGTH AS TO
SOME OF THE DIFFERENCES BETWEEN THAT WHICH
IS DEPICTED IN THE FIRST TWENTY-FIVE SECONDS
OF THE VIDEO AND THAT WHICH ACTUALLY
OCCURRED.
2. DID THE TRIAL COURT ABUSE ITS DISCRETION IN
DENYING [] APPELLANT’S BRADY[4] MOTION TO PERMIT
HIS EXPERT TO OBTAIN THE UNCOMPRESSED VERSION
OF THE POLICE VIDEO, THUS EFFECTIVELY DENYING
APPELLANT’S USE OF HIS RETAINED EXPERT?
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4
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).
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Appellant’s Brief at 2-3.
In his first issue, Appellant challenges the sufficiency of the evidence
for his conviction. He claims that he is innocent of the charges against him,
and that the video was fabricated and does not show his vehicle. His issue
merits no relief.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
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 fact-finder 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 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 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
Appellant was convicted for violating the following statute:
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§ 3322. Vehicle turning left
The driver of a vehicle intending to turn left within an
intersection or into an alley, private road or driveway shall
yield the right-of-way to any vehicle approaching from the
opposite direction which is so close as to constitute a
hazard.
75 Pa.C.S. § 3322.
Appellant’s challenge to the sufficiency of the evidence is devoid of
merit. Corporal Miller’s testimony alone, even without the corroborative
video, supports the trial court’s finding that Appellant turned left into an
intersection without yielding to Corporal Miller, who was proceeding straight
across the intersection.
Viewing all the evidence admitted at trial in the light most favorable to
the Commonwealth, there is sufficient evidence to enable the fact-finder to
find every element of the crime “vehicle turning left” beyond a reasonable
doubt, and the lack of clarity in the dash cam pictures does not render the
evidence insufficient.
Next, Appellant argues the trial court abused its discretion by denying
his “Motion to Compel Commonwealth to Produce Exculpatory Material
Pursuant to Brady v. Maryland.” He claims he needed an uncompressed
Audio Video Interleave (AVI) format straight from the original recording so
that his expert could conduct a forensic video examination to determine the
authenticity of the video, but that he received instead a video object file
(VOB) that did not contain all the data of the AVI.
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Whether to grant a motion to compel discovery is within the discretion
of the trial court:
Rule 573. Pretrial Discovery and Inspection
* * *
(B) Disclosure by the Commonwealth.
* * *
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise provided in
Rules 230 (Disclosure of Testimony Before Investigating
Grand Jury) and 556.10 (Secrecy; Disclosure), if the
defendant files a motion for pretrial discovery, the court
may order the Commonwealth to allow the defendant’s
attorney to inspect and copy or photograph any of the
following requested items, upon a showing that they are
material to the preparation of the defense, and that the
request is reasonable:
* * *
(iv) any other evidence specifically identified by the
defendant, provided the defendant can additionally
establish that its disclosure would be in the interests of
justice.
Pa.R.Crim.P. 573.
Here, the court did not abuse its discretion by denying Appellant’s
motion to compel the Commonwealth to produce a different version of the
video he already had. The record reflects that Appellant wrote several
letters to the district attorney and the chief of police to obtain the video.
Assistant District Attorney Sarah Heimbach (“the ADA”) sent Appellant 2
DVDs on February 5, 2015. In response to his letter in which he indicated
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he could not play the DVDs on his computer, the ADA wrote him a letter
advising him to play them through “VLC media player” and offered for him to
come to the district attorney’s office to play the DVDs, because she knew
that they played on their computers.
Appellant was eventually able to play the DVD. The court did not
abuse its discretion in not compelling the police department to supply him
with an AVI copy, especially considering that it did not know if it had such a
copy. Further, Appellant only wanted this version to explore his theory
about how the police department essentially framed him for something he
did not do. Corporal Miller’s testimony alone would have been sufficient to
support Appellant’s conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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