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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LAMAR L. DAVIS,
Appellant No. 31 MDA 2016
Appeal from the Judgment of Sentence Entered January 5, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000303-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016
Appellant, Lamar L. Davis, appeals from the judgment of sentence of
18 months’ to 4 years’ incarceration, followed by one year probation,
imposed after he was convicted of possession with intent to deliver a
controlled substance (PWID), 35 P.S. §780-113(a)(3), false identification to
a law enforcement officer, 18 Pa.C.S. § 4914(a), and a violation of Motor
Vehicle Code’s general lighting requirements, 75 Pa.C.S. § 4303(b). On
appeal, Appellant solely challenges the trial court’s denial of his pretrial
motion to suppress. After careful review, we affirm.
Appellant was charged with the above stated offenses following a
traffic stop of his vehicle on February 12, 2015, by Officer Robert Brown of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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the Williamsport Bureau of Police. Prior to trial, Appellant filed a motion to
suppress the evidence discovered during that traffic stop. The suppression
court summarized the facts established at the hearing on Appellant’s motion,
as follows:
[Officer] Brown … has been an officer with Williamsport
Bureau of Police since December 5, 2011. On February 12,
2015, [Officer] Brown was driving a patrol car. At 12:20 a.m.,
he stopped [Appellant’s] vehicle after observing that the
vehicle’s center brake light and registration light were not
functioning.
When the stop occurred, the Williamsport Bureau of Police
was transitioning to a new video system in patrol cars. Some
patrol cars did not yet have the new system, which automatically
transfers video from the car’s camera to a database. With the
“old” video system, an officer had to insert an “SD” card. The
camera in the patrol car would start recording when the officer
activated the car’s emergency lights. At the end of a shift, the
officer would remove the SD card, take it into police
headquarters, and transfer the video from the card to a
database.
After [Appellant’s] preliminary hearing on February 17,
2015, [Officer] Brown checked for video of the stop, but there
was no video. [Officer] Brown [stated that he] does not know
why there is no video. He could have forgotten to insert the SD
card at the beginning of his shift, or he could have forgotten to
remove the card at the end of his shift. Sometimes an SD card
cracks or “just does not work.” Around the date of the stop,
[Officer] Brown lost an SD card and had to buy a new one.
[Officer] Brown has never purposefully kept an SD card out of
the video system so that a traffic stop would not be recorded.
Suppression Court Opinion (SCO), 7/20/15, at 1-2.
In Appellant’s motion to suppress, and at the hearing, he argued, inter
alia, “that video of the stop is potentially useful evidence and the
circumstances, including the loss of an SD card around the date of the stop,
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show that [the] video was discarded in bad faith.” Id. at 2. Appellant
claimed that Officer Brown’s loss of the video amounted to a due process
violation, which he conceded requires proof that the officer’s failure to
produce that evidence “was done in bad faith….” N.T. Suppression Hearing,
5/14/15, at 13. Ultimately, the suppression court concluded that Officer
Brown’s testimony at the suppression hearing was credible, and that “the
circumstances do not show bad faith.” SCO at 4. Accordingly, the court
denied Appellant’s motion to suppress.
Appellant’s case proceeded to a non-jury trial, at the close of which he
was convicted of the above-stated offenses. On January 5, 2016, Appellant
was sentenced to the term set forth supra. He filed a timely notice of
appeal, and also timely complied with the court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Therein,
Appellant raised one issue: “[Appellant] avers that the lower court erred by
denying [Appellant’s] motion to suppress as specified in his motion which
was denied by Opinion and Order of the [court] … on July 17, 2015.”
Pa.R.A.P. 1925(b), 1/15/16. On February 19, 2016, the trial court filed a
Rule 1925(a) opinion, stating that it was relying on its July 20, 2015 opinion
that accompanied its order denying Appellant’s motion to suppress.
Herein, Appellant presents one issue for our review: “Did the lower
court err by failing to suppress evidence seized following a vehicle stop for
burned out lights when the officer lost, misplaced or otherwise destroyed the
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police car video?” Appellant’s Brief at 4. Before addressing Appellant’s
argument, we note our standard of review:
In reviewing an order from a suppression court, we consider the
Commonwealth’s evidence, and only so much of the defendant’s
evidence as remains uncontradicted. We accept the suppression
court’s factual findings which are supported by the evidence and
reverse only when the court draws erroneous conclusions from
those facts.
Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).
In this case, Appellant contends that the suppression court committed
an error of law by applying a ‘bad faith’ standard in assessing whether
Appellant’s due process rights were violated by Officer Brown’s failure to
produce the video from his patrol car. In this vein, the suppression court
explained:
“[B]ad faith is required for a due process violation where merely
potentially useful evidence is destroyed, no matter how useful to
the prosecution.” Commonwealth v. Snyder, 963 A.2d 396,
404 (Pa. 2009). 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.” Arizona v. Youngblood, 488 U.S.
51, 58 (1988). Here, [Officer] Brown testified that, after the
preliminary hearing, he checked for video of the stop, but there
was no video. He testified that he did not know why there was
no video. [Officer] Brown further testified that, around the time
of the stop, he lost an SD card and had to buy a new one. The
[c]ourt finds [Officer] Brown credible, so the circumstances do
not show bad faith. Since the circumstances do not show bad
faith, there is no due process violation.
SCO at 4.
On appeal, Appellant avers that the court’s ‘bad faith’ analysis under
Snyder was inappropriate because in that case, “the Pennsylvania Supreme
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Court decided an allegation of [a] federal due process violation….”
Appellant’s Brief at 10 (emphasis added). According to Appellant, he is not
asserting a violation of his federal constitutional rights, but rather, that “his
state constitutional due process rights have been violated by the loss or
destruction of [the] video of his vehicle stop.” Id. Relying on Justice Baer’s
concurring opinion in Snyder, Appellant maintains that Pennsylvania’s due
process clause offers more protection than the federal Constitution, and that
no ‘bad faith’ is necessary to prove a due process violation under our state
Constitution. See id. at 10 (quoting Snyder, 963 A.2d at 407 (J. Baer
concurring) (acknowledging that “this Court is bound to defer to the United
States Supreme Court's interpretation of federal due process precepts as
enunciated in Illinois v. Fisher, 540 U.S. 544 … (2004),” but stating his
belief “that our interpretation of due process and fundamental fairness in
Commonwealth v. Deans, … 610 A.2d 32 ([Pa.] 1992), was correct, and
[he] would be inclined to consider our analysis in Deans in the context of a
due process argument premised upon the Pennsylvania constitution when
such an argument is properly presented”)).
We need not delve into the details of Appellant’s state due process
argument, as our careful review of the record demonstrates that he did not
raise this claim before the suppression court. Specifically, in Appellant’s
written motion to suppress, he stated only that, “[t]here is no Motor Vehicle
Recording from Officer Brown’s police car.” Motion to Suppress, 4/15/15, at
1 ¶ 5. Appellant did not raise any allegation of a due process violation,
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either state or federal. While a due process claim was raised at the
suppression hearing, defense counsel conceded that the issue was governed
by Snyder, and that a showing of bad faith was required. In particular,
counsel stated:
[Defense Counsel:] I believe this would fall under …
Commonwealth v. Snyder, … that’s a Pennsylvania Supreme
Court case of 2009 that basically was Pennsylvania’s version of
Arizona v. Youngblood, which is a United States Supreme Court
opinion from 1988, 488 U.S. 51, which says, basically, in cases
where the prosecution has discarded potentially useful evidence,
a due process violation occurs [if] the Commonwealth’s failure to
preserve [the evidence] was done in bad faith regardless of
the centrality to the evidence of the prosecution or defense and
regardless of whether the evidence was introduced at trial. So
it’s regardless of whether or not they would have introduced it
because he still says he saw what he saw.
And what that does is … [it demonstrates] that [the
evidence] doesn’t have to be exculpatory, it just has to be
potentially useful, which I would argue that this is potentially
useful. And the failure to preserve it has to be in bad faith.
And that’s difficult to decide but what the Supreme Court said in
Arizona v. Youngblood is that bad faith is shown where evidence
is discarded under circumstances in which the police,
themselves, by their conduct indicate that the evidence could
form the basis for exonerating the defendant.
My argument today would [be that] Officer Brown’s
testimony was that an SD card was lost around this time and he
couldn’t say what time it was. I think that that could
implicate bad faith here.
…
In this case, if Officer Brown testified that he’s responsible
for the SD card and it just -- he lost it …. [T]his is a PWID drug
arrest, [and] the only reason to pull him over would be easily
shown on that video, [which] I think is something that the
[c]ourt’s going to have to closely examine to determine whether
or not that falls under this Snyder case and the progeny of the
Arizona v. Youngblood case.
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N.T. Suppression Hearing at 13-15 (emphasis added).
It is clear from the record that Appellant did not raise, before the
suppression court, his argument that the Pennsylvania due process clause
does not require a showing of bad faith. Instead, Appellant acknowledged
the applicability of the bad faith standard elucidated in Snyder, and argued
that Officer Brown’s testimony was sufficient to establish that the officer
acted in bad faith by not producing the video. Because the argument
Appellant presents herein was not raised before the suppression court, it is
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). Additionally, we
note that Appellant did not specifically raise his state due process claim in
his boilerplate Rule 1925(b) statement; thus, it is waived on this basis as
well. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”). Because Appellant offers no other argument in challenging
the court’s denial of his pretrial motion to suppress, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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