J-S61033-19
2020 PA Super 34
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUNA BENVENISTI-ZAROM :
:
Appellant : No. 342 EDA 2019
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004933-2017
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 11, 2020
Appellant Luna Benvenisti-Zarom appeals the judgment of sentence
entered by the Court of Common Pleas of Montgomery County after Appellant
was convicted of aggravated assault by vehicle while driving under the
influence (DUI), aggravated assault by vehicle, DUI (general impairment),
DUI (high rate of alcohol), recklessly endangering another person (REAP), and
several summary offenses. After careful review, we affirm.
The trial court aptly summarized the factual background and procedural
history of the case as follows:
On February 21, 2017, at approximately 11:22 p.m., at mile
marker 20.9 of the northbound Northeast Extension (Interstate
476), a Honda Accord driven by [Appellant] collided with a
Volkswagen Passat being driven by Kelley Tansley (“Victim”).
Pennsylvania State Trooper Gregory Neely arrived at the accident
scene shortly afterwards and observed [Appellant] lying on the
ground by the driver’s door of the Honda Accord. Trooper Neely’s
____________________________________________
* Former Justice specially assigned to the Superior Court.
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assessment of the scene led him to conclude the accident was the
result of a head[-]on collision caused by [Appellant’s] vehicle
traveling southbound in the far left northbound lane of the
Northeast Extension.
[Appellant] was grabbing her stomach and yelled at Trooper
Neely to “go away.” The trooper believed [Appellant] was injured.
EMS workers subsequently moved [Appellant] into an ambulance
which had arrived at the scene several minutes later. Trooper
Neely spoke with [Appellant] while she was seated in the
ambulance and noted the strong odor of alcohol on her breath.
Following a time period of approximately thirty (30) to forty-
five (45) minutes, the ambulance transported [Appellant] to a
helicopter which had landed on the Northeast Extension. The
helicopter airlifted [Appellant] to Thomas Jefferson University
Hospital (“Jefferson Hospital”) in Philadelphia, PA for treatment of
injuries she sustained in the accident. During the time period in
which [Appellant] was seated in the ambulance, Trooper Neely did
not ask [Appellant] to take a blood test because she was being
treated by medical personnel. At the accident scene, authorities
towed [Appellant’s] vehicle after she was airlifted to Jefferson
Hospital. Pennsylvania State Trooper Richard Hawkins
subsequently received instructions to see [Appellant] at Jefferson
Hospital.
Upon [Appellant’s] arrival at Jefferson Hospital, an
examination revealed she required surgery for her injuries. At
1:20 a.m. on February 22, 2017, medical personnel administered
100 mcg of Fentanyl to [Appellant] to relieve her pain. At 1:55
a.m., Trooper Hawkins arrived at Jefferson Hospital and was able
to speak with [Appellant] in one of the medical rooms. The
trooper asked [Appellant] questions regarding how the accident
occurred. In her responses to the trooper’s questions, [Appellant]
indicated that she was at a friend’s house earlier in the evening
where she had consumed three glasses of wine. [Appellant] did
not recall how the crash occurred. Trooper Hawkins suspected
[Appellant] had driven under the influence of alcohol and advised
her that she was under suspicion for DUI. The trooper
subsequently read to [Appellant] from a DL-26B form. [Appellant]
consented to a blood draw and although she was unable to sign
the DL-26B form due to multiple “tubes” in her hand, [Appellant]
provided oral consent. Trooper Hawkins observed the blood draw,
which occurred at 2:02 a.m. and later transported the blood
specimen to Trooper Neely. Test results performed on
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[Appellant’s] blood indicated a [blood alcohol content (BAC)] of
.127%. On April 19, 2017, authorities formally charged [Appellant
with the aforementioned offenses].
Trial Court Opinion (“T.C.O.”), 6/6/19, at 1-3.
On December 17, 2017, Appellant filed a motion for discovery in which
she sought the “black box” from her vehicle that would contain information
about her direction of travel at the time of the accident. Initially, the
Commonwealth did not investigate Appellant’s car, which was towed from the
accident scene. On February 11, 2018, the prosecutor responded in an email
that the Commonwealth did not have a black box in its possession. In a
subsequent hearing, the prosecutor asserted that he did not have possession
of a black box from Appellant’s vehicle, had never sought black box data
before, and had not researched how to obtain such data.
Thereafter, the defense submitted an accident reconstruction report, in
which its expert concluded that Appellant was not traveling southbound in the
northbound lane of the Northeast Extension when the accident occurred. The
report criticized the prosecution for failing to obtain black box data from
Appellant’s vehicle.
In response, the prosecution sought the assistance of Pennsylvania
State Police (PSP) expert Sergeant Charles Burkhardt, who concluded that
finding the black box from Appellant’s vehicle was necessary to rebut the
claims in the defense’s accident reconstruction report. After locating the black
box from Appellant’s vehicle in a junkyard in Carbon County, Sergeant
Burkhardt obtained a warrant to obtain the black box, analyzed the data, and
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produced a report in which he concluded that Appellant’s vehicle was traveling
southbound in the far left northbound lane of the Northeast Extension when
the accident occurred. Sergeant Burkhardt entered the black box into
evidence, provided the defense a copy of the data along with his expert report,
and provided Appellant an opportunity to inspect the black box. Thereafter,
Appellant did not file a request to inspect the black box.
On August 14, 2018, Appellant filed a motion to suppress (1) her blood
test results, (2) statements she made to the police and (3) the black box
seized from her vehicle. On the same day, Appellant also filed a motion to
dismiss the charges, as she claimed, inter alia, the Commonwealth violated
discovery rules by misleading the defense regarding the existence of the black
box. Appellant claimed that she could not afford to commission an expert to
perform a new accident reconstruction report using the black box data. On
August 17, 2018, the Commonwealth filed a Motion in Limine to preclude
portions of the report of defense expert Dr. Hedva Shamir.
On August 31, 2018, the trial court denied Appellant’s suppression
motion and her motion to dismiss the charges. However, to avoid unfair
prejudice, the trial court permitted Appellant to obtain a new accident
reconstruction report and restricted the Commonwealth from presenting its
accident reconstruction report or its expert testimony based on the black box
data in its case in chief. If the defense’s expert referenced the black box data
on direct examination, the Commonwealth would be permitted to offer its
corresponding accident reconstruction evidence in rebuttal.
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In addition, the trial court granted the Commonwealth’s motion in part,
finding inter alia, that Dr. Shamir was prohibited from testifying as to the
“validity of Appellant’s consents.” Order, 8/31/18, at 1. However, the trial
court also indicated that the Commonwealth’s motion was denied in part as
Dr. Shamir would be permitted to testify as to the medical conditions of
Appellant and the victim as a result of the automobile accident. At trial,
Appellant chose not to present Dr. Shamir as a witness and did not attempt
to offer her accident reconstruction report into evidence.
On September 26, 2018, the jury found Appellant guilty of aggravated
assault by vehicle while DUI, aggravated assault by vehicle, REAP, and two
counts of DUI, while the trial court found Appellant guilty of all the summary
offenses. After her sentence was imposed, Appellant filed a timely appeal and
complied with the trial court’s direction to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises seven issues for our review on appeal:
1. Whether the Trial Court erred in denying Appellant’s pretrial
motion to suppress the results of Appellant’s blood alcohol test
where there was no warrant and a lack of consent?
2. Whether the Trial Court erred in denying Appellant’s pretrial
motion to suppress where the blood draw occurred after the
two-hour window required under 75 Pa.C.S.A. § 3802(b) and
was done without good cause shown for violation of that rule?
3. Whether the Trial Court erred in excluding the proffered
testimony of Appellant’s expert witness Hedva Shamir, M.D.,
on the question of consent?
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4. Whether the Trial Court erred in allowing the Commonwealth
the opportunity to present expert testimony regarding
consent?
5. Whether there was prosecutorial misconduct so egregious that
it prevented Appellant from having a full and fair opportunity
to respond on the issues of fault and causation where the
Commonwealth failed to timely recover and produce to the
defense the black box from Appellant’s vehicle?
6. Whether the Trial Court erred in permitting the Commonwealth
to show to the jury the accident/scene reconstruction video
created by the Pennsylvania State Police which was highly
prejudicial as it was not probative of the details of the accident?
7. Whether the Trial Court erred in permitting the Commonwealth
to present the opinion of Trooper Neely as to how the accident
occurred when such testimony was tantamount to an expert
opinion without Trooper Neely having been qualified as such
and that opinion was critical to the issues of causation and fault
in the case?
Appellant’s Brief, at 6-7 (reordered for ease of review).
Appellant’s first two arguments challenge the trial court’s decision to
deny her motion to suppress her blood alcohol content (BAC) test results.
Our standard of review in addressing a challenge to the denial 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. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court's legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court's legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
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Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations
and quotation marks omitted). In addition, “our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670
(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).
Specifically, Appellant claims she was incapable of providing voluntary
consent to the warrantless blood test as she was under the influence of
narcotic pain medication that was given to her intravenously by hospital
personnel to manage her pain and prepare her for surgery. Appellant also
asserts that her BAC test results should have been suppressed as officers did
not have good cause to obtain the warrantless blood test outside the two-hour
window after the accident in violation of 75 Pa.C.S.A. § 3802(g).
We are guided by the following well-established principles:
The Fourth Amendment to the Constitution of the United States
and Article I, § 8 of the Constitution of the Commonwealth of
Pennsylvania both prohibit unreasonable searches and seizures.
The administration of a blood test, performed by an agent of, or
at the direction of the government, constitutes a search under
both the United States and Pennsylvania Constitutions. If an
officer performs a blood-draw search without a warrant, it is
unreasonable and therefore constitutionally impermissible, unless
an established exception applies. Exceptions to the warrant
requirement include the consent exception. For the consent
exception to apply, the consent must be voluntary.
Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa.Super. 2018) (quoting
Commonwealth v. Evans, 153 A.3d 323, 328 (Pa.Super. 2016) (quotation
marks omitted)).
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In determining whether Appellant provided voluntary consent to the
warrantless blood test, we apply the following precedent:
In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of
an essentially free and unconstrained choice—not the result of
duress or coercion, express or implied, or a will overborne—under
the totality of the circumstances. The standard for measuring the
scope of a person's consent is based on an objective evaluation of
what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent. Such
evaluation includes an objective examination of the maturity,
sophistication and mental or emotional state of the defendant.
Gauging the scope of a defendant's consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid,
or instead the product of coercion, deceit, or misrepresentation.
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the defendant's
custodial status; 2) the use of duress or coercive tactics by law
enforcement personnel; 3) the defendant's knowledge of his right
to refuse to consent; 4) the defendant's education and
intelligence; 5) the defendant's belief that no incriminating
evidence will be found; and 6) the extent and level of the
defendant's cooperation with the law enforcement personnel.
Commonwealth v. Krenzel, 209 A.3d 1024, 1028-29 (Pa.Super. 2019)
(quoting Commonwealth v. Venable, 200 A.3d 490, 497 (Pa.Super. 2018)).
Appellant argues that she could not have given voluntary consent to the
trooper’s request for blood testing in light of her mental and emotional state
as she was severely injured, was taken to the hospital unwillingly by
helicopter, and under the influence of a narcotic given by hospital personnel.
While we acknowledge Appellant had been administered a dose of
Fentanyl to relieve her pain thirty-five minutes before speaking with Trooper
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Hawkins, Appellant fails to address Trooper Hawkins’ testimony that Appellant
was alert and able to have an intelligent conversation at the time he
interviewed her. Trooper Hawkins, who had received training in identifying
impaired drivers, reported that Appellant did not appear to be under the
influence of a controlled substance and did not display an inability to answer
his questions. During this interview, Appellant indicated on the night of the
accident, she had consumed three glasses of wine at a friend’s house but could
not recall how the accident occurred. Based on this statement, Trooper
Hawkins suspected Appellant was driving under the influence of alcohol when
the accident occurred. Therefore, Trooper Hawkins requested that Appellant
submit to blood testing and read her the relevant DL-26 form.
At trial, Trooper Hawkins asserted he had no reservations about
Appellant’s ability to understand the information he presented to her in the
DL-26 form. Moreover, just minutes before speaking to Trooper Hawkins,
Appellant gave verbal consent for surgery and treatment to hospital
personnel, who also did not express any reservation about Appellant’s ability
to give consent. As the record supports the trial court’s finding that Appellant
rendered voluntary consent to Trooper Hawkins’s request for a blood draw,
we conclude that the trial court did not err in refusing to suppress Appellant’s
BAC test results on this basis.
We also reject Appellant’s claim that her BAC test results should have
been suppressed as her blood was tested more than two hours after her
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accident. Appellant was convicted of DUI under Section 3802(a)(1) and
3802(b) of the Vehicle Code which provide:
(a) General impairment.—
(1) An 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.
***
(b) High rate of alcohol.--An 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.
The requirement in Section 3802(b) that a defendant’s blood must be
taken within two hours after the defendant has been in control of a vehicle is
subject to a “good cause” exception:
Exception to two-hour rule.--Notwithstanding the provisions of
subsection (a), (b), (c), (e) or (f), where alcohol or controlled
substance concentration in an individual's blood or breath is an
element of the offense, evidence of such alcohol or controlled
substance concentration more than two hours after the individual
has driven, operated or been in actual physical control of the
movement of the vehicle is sufficient to establish that element of
the offense under the following circumstances:
(1) where the Commonwealth shows good cause explaining
why the chemical test sample could not be obtained within
two hours; and
(2) where the Commonwealth establishes that the individual
did not imbibe any alcohol or utilize a controlled substance
between the time the individual was arrested and the time
the sample was obtained.
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75 Pa.C.S.A. § 3802(g).
In this case, we agree with the trial court that the prosecution presented
“good cause” to explain why officers failed to test Appellant’s blood within two
hours of her accident. When Trooper Neely arrived at the accident scene, he
did not proceed to interview Appellant who appeared to be severely injured.
Appellant was lying on the ground beside her vehicle, clutching her stomach
in pain, and screaming at Trooper Neely to “go away.” Notes of Testimony
(“N.T.”), Pre-trial motion hearing, 8/27/18, at 69.
Emergency personnel arrived on the scene at nearly the same time as
Trooper Neely and began to treat Appellant immediately as she was lying on
the ground. Thereafter, emergency personnel transported Appellant to the
back of an ambulance and continued to treat her while they awaited the arrival
of a helicopter to airlift Appellant to a local hospital. Approximately thirty to
forty-five minutes later, a helicopter landed on the Northeast Extension and
transported Appellant to Jefferson Hospital.
When Trooper Neely was asked why he did not ask Appellant to consent
to blood testing during this thirty to forty-five minute period while Appellant
was being treated by medical personnel, Trooper Neely testified that “[i]n my
career, I’ve never asked someone to submit to a chemical test in the back of
an ambulance when they’re being treated for injuries, so I didn’t – that’s not
the time to do that.” Id. at 93. In light of the circumstances in this case, we
agree with the trial court’s finding that Trooper Neely had good cause to
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conclude that “there was too much uncertainty surrounding [Appellant’s]
medical condition to order a blood test” at the accident scene. T.C.O. at 23.
In addition, the parties agree that Appellant did not consume any alcohol
between the time of the accident and her blood testing two hours and forty
minutes later. While Appellant was administered Fentanyl between this
period, Appellant does not contend that testing for alcohol in her blood would
in any way be affected by the addition of the intravenous narcotic into her
bloodstream.
Moreover, Appellant’s argument based on the “two hour rule” does not
entitle her to suppression of her BAC test results in her prosecution under
Section 3802(a)(1) (DUI: general impairment – incapable of safely driving),
as this subsection does not include language discussing the “two hour”
requirement. As such, our courts have held that “evidence of blood tests
taken more than two hours after driving is admissible under subsection (a)(1)
without resort to section 3802(g).” Commonwealth v. Eichler, 133 A.3d
775, 787 (Pa.Super. 2016) (citing Commonwealth v. Segida, 604 Pa. 103,
985 A.2d 871, 879 (2009)). Accordingly, we conclude that the trial court did
not err in refusing to suppress Appellant’s BAC test results.
In her third claim, Appellant asserts the trial court abused its discretion
in “excluding the proffered testimony of Appellant’s expert witness, Hedva
Shamir, M.D. on the question of consent.” Appellant’s Brief, at 6. Similarly,
in her fourth claim, Appellant argues that the trial court should not have
allowed the Commonwealth to present expert testimony regarding consent.
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Our standard of review is as follows:
The admission of evidence is committed to the sound discretion of
the trial court, and a trial court’s ruling regarding the admission
of evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Cosby, ___A.3d___, 3314 EDA 2018, at *16 (Pa.Super.
Dec. 10, 2019) (quoting Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.
Super. 2010) (citations and quotation marks omitted)).
It is well-established that “[e]xpert testimony is generally admissible if:
the witness has a specialized knowledge beyond that possessed by the
average layperson; such knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; and the expert's methodology is
generally accepted in the relevant field.” Commonwealth v. Maconeghy,
642 Pa. 770, 778, 171 A.3d 707, 712 (2017) (citing Pa.R.E. 702).
In this case, the Commonwealth filed a “Motion in Limine to Preclude
Portions of Defendant’s Medical Expert Report, asking the trial court to limit
the scope of defense expert Dr. Shamir’s testimony on various topics. Dr.
Shamir is an emergency medicine board-certified physician who submitted an
expert report on several issues in this case, including her opinions on the
cause and manner of the accident (accident reconstruction), the rate of speed
the vehicles were traveling before the accident, as well as the validity of
Appellant’s consent to blood testing after being given an intravenous narcotic
at the hospital to relieve her pain.
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The trial court granted the Commonwealth’s motion in part, finding inter
alia, that Dr. Shamir was prohibited from testifying as to the “validity of
Appellant’s consents.” Order, 8/31/18, at 1. However, the trial court also
indicated that the Commonwealth’s motion was denied in part as Dr. Shamir
was permitted to testify as to the medical conditions of Appellant and the
victim as a result of the automobile accident. Thereafter, Appellant chose not
to present Dr. Shamir as a witness at trial.
While Appellant asserts that the trial court erred in restricting Dr. Shamir
from testifying at trial on the issue of the validity of Appellant’s consent to
blood testing, we fail to see how this testimony would constitute relevant
evidence at trial. The trial court previously rejected Appellant’s argument that
her consent to blood testing was invalid when it denied her motion to suppress
the BAC testing results. As testimony concerning Appellant’s consent to blood
testing would not have been relevant to prove an element of the offenses
charged in this case or a valid defense at trial, we agree with the trial court’s
assessment that Dr. Shamir’s testimony on the issue of consent would only
“cause confusion and prejudice.” T.C.O. at 7. Accordingly, the trial court did
not abuse its discretion in excluding Dr. Shamir’s testimony on this issue.
Appellant also argues that it was unfair for the trial court to allow the
prosecution’s expert witness, Dr. David Rittenhouse, to testify to Appellant’s
ability to consent to blood testing. Dr. Rittenhouse was the emergency
physician on duty at Jefferson Hospital at the time Appellant was brought for
treatment after the accident in question.
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However, Appellant fails to recognize that she did not object to the scope
of Dr. Rittenhouse’s testimony during trial. “Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). As Appellant failed to preserve this issue review by making a proper
objection in the lower court, we find her argument to be waived.
Fifth, Appellant accuses the Commonwealth of prosecutorial misconduct
in failing to timely recover and produce for the defense the “black box” from
Appellant’s vehicle. Appellant claims she did not have sufficient opportunity
to have her expert evaluate this evidence and was denied a fair trial.
Our Supreme Court “has limited the prosecution's disclosure duty
such that it does not provide a general right of discovery to
defendants.” Commonwealth v. Cam Ly, 602 Pa. 268, 293, 980
A.2d 61, 75 (2009). “Under Brady [v. Maryland, 373 U.S. 83
(1963)], the prosecution's failure to divulge exculpatory evidence
is a violation of a defendant's Fourteenth Amendment due process
rights.” Id. “[T]he prosecutor is not required to deliver his entire
file to defense counsel, but only to disclose evidence favorable to
the accused that, if suppressed, would deprive the defendant of a
fair trial.” Id. (quoting United States v. Bagley, 473 U.S. 667,
675, 105 S.Ct. 3375, 87 L.3d.2d 481(1985)). “[T]o establish a
Brady violation, a defendant must demonstrate that: (1) the
evidence was suppressed by the Commonwealth, either willfully
or inadvertently; (2) the evidence was favorable to the defendant;
and (3) the evidence was material, in that its omission resulted in
prejudice to the defendant.” Commonwealth v. Haskins, 60
A.3d 538, 547 (Pa.Super. 2012) (citing Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297, 308 (2011)). “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.” Id.
(citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014,
1019 (2003)) (citation omitted).
Nevertheless, “[t]he withheld evidence must have been in
the exclusive control of the prosecution at the time of trial.”
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Haskins, supra. “Brady is not violated when the appellant knew
or, with reasonable diligence, could have uncovered the evidence
in question, or when the evidence was available to the defense
from other sources.” Commonwealth v. Roney, 622 Pa. 1, 23,
79 A.3d 595, 608 (2013) (citing Commonwealth v. Smith, 609
Pa. 605, 17 A.3d 873, 902–03 (2011)) (citation omitted)
(emphasis added).
Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa.Super. 2015).
In this case, the Commonwealth did not suppress the black box evidence
sought by Appellant. Instead, the prosecutor indicated to the defense that he
did not have possession of the black box evidence as the prosecution initially
had not planned on presenting expert testimony on this topic. Appellant does
not explain why her expert could not have independently uncovered the black
box data or why she believes that the Commonwealth was in exclusive control
of this evidence, when Appellant’s vehicle had been towed to a junkyard
owned by a third party. The prosecution reconsidered its strategy and
subsequently obtained the black box data after Appellant’s expert report
criticized the prosecution for failing to retrieve this evidence.
In addition, Appellant has not established that the black box data was
exculpatory evidence as the prosecution claims that the black box data
confirms its theory that Appellant was driving southbound on the northbound
lane of the Northeast Extension when the accident occurred.
Moreover, Appellant has not shown that the black box data was material
such that she was prejudiced by its omission. To establish prejudice, Appellant
was required to demonstrate a “reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
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different.” Commonwealth v. Treiber, 632 Pa. 449, 493, 121 A.3d 435,
461 (2015). The prosecution presented ample evidence of Appellant’s
responsibility for the crash, as the victim testified that she could not avoid
Appellant’s car which came “right at” her while she was driving in her own
lane. N.T., 9/24/18, at 99. In addition, Trooper Neely testified that based on
his observation of the placement of the cars and accident debris, he could
infer that Appellant was traveling the wrong direction on the highway when
the crash occurred. Appellant could not remember how the accident occurred.
Accordingly, the trial court did not err in denying Appellant’s Brady claim.
In her sixth and seventh arguments, Appellant argues that the trial court
erred in allowing the Commonwealth to present a video created by the PSP to
reconstruct how the accident occurred and in permitting Trooper Neely to offer
an expert opinion as to the cause and manner of the accident in question when
the officer had not been qualified as an expert.
Both claims are waived as Appellant did not properly raise these
arguments in the lower court. See Pa.R.A.P. 302(a), supra. While Appellant
objected to the admission of the Commonwealth’s reconstruction video in her
suppression motion, defense counsel admitted twice at the pre-trial motion
hearing that the defense would not pursue a challenge to the admission of the
video and did not object to the video being shown to the jury. N.T., 8/27/18,
at 15-16, 328. Similarly, Appellant did not object to Trooper Neely’s testimony
that, based on his observations of the placement of the vehicles and debris,
he believed Appellant was driving southbound in the northbound lane of traffic
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on the highway when the accident occurred. Accordingly, we decline to review
the merits of these arguments.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/20
.
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