J-S78040-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DERRICK MICHAEL GLEASON, :
:
Appellant : No. 1101 WDA 2017
Appeal from the Judgment of Sentence April 11, 2017
in the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000067-2016
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 14, 2018
Derrick Michael Gleason (Appellant) appeals from his judgment of
sentence imposed after a jury convicted him of aggravated assault,
aggravated assault by vehicle, two counts of homicide by vehicle, criminal
mischief – tampering with property, two counts of involuntary manslaughter,
simple assault, and reckless endangerment.1 Specifically, Appellant
challenges (1) the denial of his pre-trial motion to suppress evidence relating
to the Commonwealth’s accident reconstruction investigation, and (2) the trial
court’s evidentiary ruling limiting his cross-examination of the
Commonwealth’s accident reconstruction investigators, prohibiting him from
inquiring about the Commonwealth’s failure to preserve the wreckage of the
two vehicles involved in the accident. We affirm.
1 The trial court also convicted him of various traffic violations.
*Retired Senior Judge assigned to the Superior Court.
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The Commonwealth filed a criminal complaint on February 17, 2016,
charging Appellant with the aforementioned offenses, all of which stemmed
from a fatal car accident. Prior to trial, Appellant filed a motion to suppress
all evidence “arising out of or in connection with [the Pennsylvania State
Police’s (PSP)] scientific reconstruction of the accident in question on the basis
that the Commonwealth has willfully and knowingly destroyed the key
evidence on which such evidence … is based [i.e., the two vehicles involved in
the accident], and has willfully and unnecessarily deprived the defense of the
opportunity to perform its own comparable investigation.” Motion to
Suppress, 10/17/2016, at 5. Following a hearing on Appellant’s motion, the
trial court made the following findings of fact.
[O]n September 18, 2015, [Appellant] was driving a 2003
Kia sedan, allegedly at a high rate of speed in Wharton Township,
Potter County, Pennsylvania. Rounding a curve, [Appellant’s]
northbound vehicle crossed into the southbound lane and collided
with a southbound 2015 Jeep Wrangler, which had veered right in
an apparent effort to avoid the collision. [Appellant] and the
driver of the Jeep, Mr. Wimer, were seriously injured.
[Appellant’s] two passengers were killed. The Commonwealth
alleged [Appellant’s] speed prior to the accident to be in excess of
80 miles per hour while the Wimer vehicle was going about 46
miles per hour.
After the accident[,] the heavily damaged vehicles were
taken to Black’s Auto Body Shop[,] which has a secure enclosure
for vehicles.
Thereafter, Corporal Batterson of the [PSP], an accident
reconstructionist, obtained a search warrant and examined both
vehicles, noting they both had recent Pennsylvania inspections.
After the Corporal’s work was complete, it was decided that the
vehicles would not be retained, and they were released to private
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parties for salvage. Months later, in approximately February
2016, a criminal complaint was filed. …
Trial Court Opinion, 1/19/2017, at 1-2 (pagination supplied).
After taking the motion under advisement, the trial court issued an
opinion and order denying the motion. The court determined that because
Appellant was arguing that defense examination of the vehicles “may have
been useful,” pursuant to Commonwealth v. Snyder, 963 A.2d 396 (Pa.
2009), Appellant was required to show that the Commonwealth acted in bad
faith by not preserving the vehicles. Trial Court Opinion, 1/19/2017, at 2
(page numbers supplied). The court concluded Appellant did not “set forth
any theory or facts which might have benefitted the defense” and failed to
“demonstrate[] any suggestion of bad faith.” Id.
The case proceeded to trial. In addition to other witnesses, the
Commonwealth called two expert witnesses: Corporal Batterson, who
performed PSP’s post-accident reconstruction and investigation, and Corporal
Michael Schmit, who assisted Corporal Batterson. The defense called several
witnesses including William Wetzel, its own expert regarding accident
reconstruction. After hearing all of the evidence, the jury convicted Appellant
of the aforementioned offenses, and the trial court found Appellant guilty of
various traffic-related summary offenses. Appellant was sentenced to an
aggregate term of 140 to 280 months’ incarceration and fines. Appellant filed
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timely an unsuccessful post-sentence motion and the instant notice of appeal.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following two issues on appeal.
1. Did the trial court err in failing to exclude expert testimony and
conclusions derived from the state police inspection of two
vehicles involved in a fatal accident when the state police failed to
impound and preserve such vehicles following [its] inspection?
2. Did the trial court err in barring the defense from cross-
examining state police investigators at trial regarding the
decision-making process that led to their failure to impound and
preserve the vehicles involved in the fatal accident in question?
Appellant’s Brief at 1 (unnecessary capitalization omitted).
Regarding Appellant’s first issue,
we begin by emphasizing that our standard of review in
addressing a challenge to a trial court’s denial of a suppression
motion is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. We are bound by the suppression
court’s factual findings so long as they are supported by the
record; our standard of review on questions of law is de novo.
Where, as here, the defendant is appealing the ruling of the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
In Illinois v. Fisher, 540 U.S. 544 (2004), the defendant filed a motion
for discovery requesting all physical evidence the state planned to use at trial,
including the white powdery substance seized from the defendant during his
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arrest. Id. Before the state complied with the discovery request and prior to
trial, the defendant absconded. While the defendant remained a fugitive, the
police, acting in accord with established procedures, destroyed the substance,
notwithstanding the pending discovery request. Id. at 546.
The Court summarized its prior case law as follows.
We have held that when the State suppresses or fails to disclose
material exculpatory evidence, the good or bad faith of the
prosecution is irrelevant: a due process violation occurs whenever
such evidence is withheld. See Brady v. Maryland, 373 U.S. 83
[] (1963); United States v. Agurs, 427 U.S. 97 [] (1976). In
[Arizona v. Youngblood, 488 U.S. 51 (1988)], by contrast, we
recognized that 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.” 488 U.S.[ at 57]. We concluded that the failure to
preserve this “potentially useful evidence” does not violate due
process “unless a criminal defendant can show bad faith on the
part of the police.” Id.[ at 58] (emphasis added).
Id. at 547-48.
The police’s testing of the substance demonstrated “that the chemical
makeup of the substance inculpated, not exculpated” the defendant. Id. at
548. The Court concluded that because at most, all the defendant could argue
is that he hoped more testing might exonerate him, the lost substance “was
plainly the sort of ‘potentially useful evidence’ referred to in Youngblood.”
Id. at 548. The Court stressed that the centrality of the contested evidence
to the prosecution’s case or the defendant’s defense is of no moment; instead,
the important distinction lies between “material exculpatory” evidence and
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“potentially useful” evidence. Id. at 549. The Court re-affirmed its prior
holding that “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute
a denial of due process of law.” Id. at 545 (citing Youngblood, 488 U.S. at
58). Because the trial court found that the police did not act in bad faith when
they disposed of the substance, the Court held that due process was not
violated when the state introduced the results of their examination of the
substance at trial. Id.
“[I]n Commonwealth v. Snyder, [] 963 A.2d 396, 405 ([Pa.] 2009),
the Pennsylvania Supreme Court adopted the Fisher approach as the
‘governing standard.’” Commonwealth v. Borovichka, 18 A.3d 1242, 1251
(Pa. Super. 2011). “In Snyder, defendants, who had been charged with
violations under the Solid Waste Management Act, filed a motion to suppress
the results of the tests on the soil sample, which they claimed was destroyed
before they could independently test it.”2 Id. The Court held that in
circumstances where the Commonwealth destroys potentially useful evidence
before the defendant has an opportunity to examine it, Fisher requires the
defendant to show the Commonwealth acted in bad faith in order to establish
a due process violation, no matter how central or helpful the evidence may be
to the defense or prosecution’s case. Snyder, 963 A.2d at 404-05. The Court
2
As in this case, the Commonwealth destroyed the samples prior to bringing
charges against the defendant. Id. at 399.
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determined the destroyed evidence was “merely potentially useful,” and the
trial court erred in suppressing the Commonwealth’s test results because the
Commonwealth did not destroy the samples in bad faith, even though the
prosecution sought to use the samples at trial, the evidence would be central
to the prosecution’s case, and the disposal was “unnecessary.” Id. at 406.
In the instant case, Appellant points to “[e]xtensive and un-
contradicted testimony” presented by the defense expert at the suppression
hearing “that without access to the actual vehicles, it was impossible to
confirm the proper operation of the braking systems and other mechanical
systems, the condition of the tires, or that no other mechanical factors
contributed to the accident.” Appellant’s Brief at 6. Appellant argues that he
“suffered clear prejudice when the prosecution was permitted to present
expert analysis blaming [Appellant] for the accident because the defense had
no available means of independently evaluating the evidence on which such
expert analysis was based.” Id. at 5-6. Appellant acknowledges that the
PSP investigators had no “evil intent” when they failed “to preserve the key
physical evidence in this case,” but claims the investigators acted in an
“inexplicably negligent” fashion. Id. at 7, n.2. According to Appellant, “due
process requires … such serious negligence [to] be considered bad faith even
if evil intent is lacking.” Id. at 7.
Furthermore, Appellant argues that this case is analogous to
Commonwealth v. Deans, 610 A.2d 32 (Pa. 1992), wherein our Supreme
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Court upheld the exclusion of prosecution expert testimony after an allegedly
forged lottery ticket was lost before the defense could examine it. Appellant
argues that as in Deans, the unpreserved evidence is “not just unavailable to
the defense for potential use as a shield, [the evidence was] even used in
absentia by the prosecution as a sword against the defense.” Appellant’s Brief
at 7.
Appellant’s arguments fail. It is clear that the wreckage of the vehicles
constitutes “potentially useful” evidence, not “material exculpatory” evidence,
as Appellant contends that the vehicles “could have been subjected to tests
[by his own expert], the results of which might have exonerated [him].” See
Fisher, 540 U.S. at 548 (citing Youngblood, 488 U.S. at 57) (emphasis
added). See also Appellant’s Brief at 6 (“[I]n this case clear reason exists for
believing that exculpatory evidence may have been available but for the
Commonwealth’s decision to release the vehicles for destruction.”) (emphasis
added).
Thus, to prevail on the suppression motion, Appellant was required to
show that the Commonwealth acted in bad faith when it failed to preserve the
wreckage of the vehicles. Even if we were to agree with Appellant’s contention
that the Commonwealth acted negligently, Appellant cites to no authority to
support his bald contention that negligence constitutes bad faith. Nor can he;
the United States Supreme Court has made clear that bad faith requires more
than negligence. Youngblood, 488 U.S. at 58.
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Furthermore, Appellant’s reliance on Deans is misplaced, as our
Supreme Court held that Deans was no longer valid law after Fisher.
Snyder, 963 A.2d at 404-05. In doing so, the Snyder Court specifically
rejected the argument that the prosecution should not be able to use evidence
to inculpate a defendant if the defendant has not been able to examine the
evidence independently. Id. at 404 (stating that “bad faith is required for a
due process violation where merely potentially useful evidence is destroyed,
no matter how useful to the prosecution”).
The record supports the trial court’s determination that the
Commonwealth did not act in bad faith. Corporal Sean S. Batterson of the
PSP testified that the vehicles were secured at Black’s Auto Body and PSP
never took possession of the vehicles. N.T., 1/13/2017, at 34-35. Corporal
Batterson gathered “information [from the] vehicles [he] felt was going to be
pertinent to counsel for the Commonwealth and [d]efense,” and removed and
preserved airbag modules and data from the vehicles. Id. at 41-42. Corporal
Batterson determined there was no further information “anybody would
possibly need.” Id. at 42. After consultation with another officer and the
district attorneys’ office, Corporal Batterson informed Black’s Auto Body that
PSP was done processing the vehicles. Id. at 41-46. Corporal Batterson
testified that he did not find any evidence that was exculpatory or even
“potentially usable” to the defense during his investigation of the vehicles. Id.
at 50. Black’s Auto Body released the Kia to Appellant’s family, as Appellant
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was still in the hospital recuperating from the injuries he sustained in the
accident, and the Jeep to Mr. Wimer’s insurance company. Id. at 53. Because
the record does not support a finding of bad faith, we conclude the trial court
did not err in denying Appellant’s motion to suppress the results of the
Commonwealth’s accident investigation.
Regarding his second issue, Appellant argues that he was denied a fair
trial because the trial court prohibited him from cross-examining the PSP
investigators “regarding their failure to take any steps to impound and
preserve the vehicles involved in the accident following their own inspection
of same.” Appellant’s Brief at 8. Appellant contends that cross-examination
exploring why PSP failed to preserve the vehicles would have permitted the
jury to infer that “failure to preserve the vehicles in question, even if not
legally mandated, still demonstrated a carelessness that undermined the basic
credibility of the PSP’s findings.” Id. at 9.
We use the following standard in cases involving evidentiary rulings
limiting cross-examination. “A trial court has discretion to determine both the
scope and the permissible limits of cross-examination. The trial judge’s
exercise of judgment in setting those limits will not be reversed in the absence
of a clear abuse of that discretion, or an error of law.” Commonwealth v.
Briggs, 12 A.3d 291, 335 (Pa. 2011) (quotation marks and citations omitted).
Here, Appellant was free to question the PSP investigators regarding
their methods of investigation and the soundness of their conclusions. Based
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upon its pre-trial ruling denying Appellant’s motion to suppress, however, the
trial court limited the scope of cross-examination regarding preservation of
the vehicles to the fact that the vehicles had not been preserved, and informed
the defense that it would advise the jury that PSP had no legal duty to preserve
the vehicles. See, e.g., N.T., 1/13/2017, at 182-86. Since the trial court had
already determined that the Commonwealth was not legally required to
preserve the vehicles, we fail to see how further inquiry into the
Commonwealth’s failure to preserve was relevant in any fashion.3 Even if it
were somehow relevant to the investigators’ credibility, the trial court was
free to exercise its discretion and broad latitude to ensure that there was no
confusion of the issues. Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa.
Super. 2017). Appellant fails to convince us that the trial court abused its
discretion or committed an error of law in limiting the scope of cross-
examination.
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
3 In its Rule 1925(a) opinion, the trial court states that the reasoning used in
its order and opinion denying Appellant’s motion to suppress is applicable to
all of Appellant’s issues on appeal. When discussing the limitations upon
cross-examination at trial, the trial court again referred to its pre-trial ruling
denying Appellant’s motion to suppress and did not elaborate further upon its
reasoning. Thus, the trial court never articulated the precise basis upon which
it made its evidentiary ruling. However, “[i]t is well-settled that this Court
may affirm a trial court’s ruling on any basis.” Commonwealth v. Kennedy,
151 A.3d 1117, 1127 (Pa. Super. 2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2018
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