Commonwealth v. Donoughe

243 A.3d 980

COMMONWEALTH of Pennsylvania

v.Michael D. DONOUGHE, Appellant

No. 639 WDA 2020

Superior Court of Pennsylvania.

Submitted November 2, 2020.

Filed December 18, 2020

Gregory Lee Cecchetti, Public Defender, Greensburg, for appellant.

Rebecca Lynn Caliusti, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Michael D. Donoughe, appeals from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County, which, sitting as finder of fact in his non-jury trial, found him guilty of both counts of Driving Under the Influence of Alcohol or Controlled Substance ("DUI"), 75 Pa.C.S.A. § 3802(a)(1), and (a)(2), and one count of summary Maximum Speed Limits, 75 Pa.C.S.A. § 3362(a)(2).¹ Herein, Appellant contends the court erred in denying his pretrial Motion to Dismiss raising a Brady² claim centered on the failure of the Pennsylvania State Police to preserve a Mobile Video Recording ("MVR") of Appellant's traffic stop, and he raises a challenge to the sufficiency of DUI-General Impairment evidence. We affirm.

On April 17, 2016, at approximately 1:30 a.m., Pennsylvania State Police Troopers Nicholas Loughner and Brian Hupe were on midnight shift patrol, driving along Pennsylvania State Route 30 in Unity Township, when they noticed Appellant's blue Jeep Cherokee traveling at a high rate of speed. N.T., 1/6/2020, at 7-8. Trooper Loughner initiated pursuit and reached a speed of 94 miles per hour ("mph") at one point to maintain contact with Appellant. N.T. at 8. The trooper then used the speedometer on his patrol car to "clock" Appellant's speed of travel at 87 mph for well over three-tenths of a mile in a 55 mile per hour zone of Route 30. Id.

Trooper Loughner activated the overhead lights of the patrol car and conducted a traffic stop of Appellant's jeep in an adjacent store parking lot. N.T. at 13. At that time, the dashcam located in Trooper Loughner's patrol car automatically initiated an MVR capturing the police/citizen interaction that ensued. N.T. at 22.

Upon reaching the driver's side window, the trooper detected a strong odor of alcohol emanating from both the jeep and Appellant's breath. Id. While speaking with Appellant and requesting his documents, the trooper noticed Appellant's eyes were bloodshot and glassy and his movements were very slow. From his vantage point, the trooper also could see a case of unopened beer on the back seat. When the trooper asked how much Appellant had been drinking that evening, Appellant answered that he had two beers prior to driving. N.T. at 13-15, 28.

Trooper Loughner ordered Appellant to exit his jeep in order to undergo a field sobriety test. Because of the combination of Appellant's height and weight,³ however, the trooper determined it would have been unfair to administer the full set of physical performance tests, so he conducted only a horizontal gaze nystagmus and a portable breath test. On the basis of such tests, along with his previous observations, he arrested Appellant for DUI and transported him to Greensburg Barracks for a legal breath test, which registered a .107% BAC. N.T. at 15-17, 41.⁴

Charged with DUI, Careless Driving, and Maximum Speed Limits, as noted supra , Appellant was accepted into the Westmoreland County Accelerated Rehabilitative Disposition ("ARD"), program, and his charges were held in abeyance. On October 24, 2017, however, the trial court ordered Appellant's removal from the ARD program on evidence that he had violated the terms of his ARD sentence by failing to complete highway safety school, drug and alcohol treatment, and to report to Adult Probation as required.

Criminal charges were refiled and a non-jury trial date was scheduled. Appellant requested discovery, including the MVR footage of his traffic stop, but the Commonwealth notified both the court and the defense that, pursuant to Pennsylvania State Police policy existing at the time,⁵ the DVD was destroyed on April 3, 2017, approximately five months after Appellant had entered the fast track DUI/ARD program. N.T. at 46-47.

On September 10, 2018, Appellant filed an omnibus pre-trial motion to dismiss the two DUI counts on grounds the "potentially exculpatory MVR footage" represented critical evidence necessary to preparing a proper defense. Appellant's Pre-trial Motion, 9/10/18, at 7. On March 7, 2019, the trial court entered its order and opinion denying Appellant's motion.⁶

Specifically, the court acknowledged that the unavailability of the MVR footage precluded Appellant from meeting his obligation under Brady to establish that the evidence at issue is materially exculpatory or impeaching. Therefore, it turned to the alternate due process analysis applicable to "potentially useful" destroyed evidence, which recognizes a constitutional violation only where such evidence was destroyed in bad faith. See California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984),⁷ Commonwealth v. Snyder, 599 Pa. 656, 963 A.2d 396, 404 (2009) (acknowledging bad faith requirement where evidence is potentially useful rather than materially exculpatory or impeaching). Because there was no dispute that the Pennsylvania State Police in this case had acted not in bad faith but, instead, in obedience to an established policy applicable to defendants accepted into ARD, the trial court denied Appellant's motion.

As noted supra, Appellant's non-jury trial ended with guilty verdicts on the two DUI charges and a summary speeding charge. The court acquitted Appellant on one count of Careless Driving, 75 Pa.C.S.A. § 3714(a). After the denial of Appellant's post-sentence motions, this timely appeal followed.

Appellant raises two issues for this Court's consideration:

1. [Did the trial court abuse its] discretion and err[ ], on March 6, 2019, by denying Appellant's omnibus pretrial motion and trial arumnets [sic] challenging the counts of Driving Under the Influence as a result of the Commonwealth's spoliation of evidence which violated his due process rights under the Pennsylvania and United States Constitutions?

2. [Did the trial court abuse its] discretion and err[ ] in finding the trial evidence was sufficient to convict Appellant?

Appellant's brief, at 7.

In his first issue, Appellant contends the Commonwealth violated his rights under Brady when it could not provide him with a DVD containing the MVR footage of his traffic stop. Appellant's brief, at 13. Without pointing to any supporting evidence, and in an apparent attempt to avoid the burden of proving bad faith on the part of the State Police, Appellant asserts baldly that he "believes the MVR footage of his arrest to be exculpatory [and] material[, such that its] omission resulted in prejudice and violated [the] due process clauses of the Pennsylvania and U.S. Constitutions. Appellant's brief, at 14.

Rulings on allegations of discovery violations are reviewed under an abuse of discretion standard. Commonwealth v. Spotti, 94 A.3d 367, 382-83 (Pa. Super. 2014). When considering a Brady claim in this regard, we must bear in mind the following:

A Brady violation comprises three elements: 1) suppression by the prosecution 2) of evidence, whether exculpatory or impeaching, favorable to the defendant, [and] 3) to the prejudice of the defendant." Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002). Furthermore, "[w]hen the [Commonwealth] fails to preserve evidence that is ‘potentially useful,’ there is no federal due process violation ‘unless a criminal defendant can show bad faith on the part of the police.’ "

Commonwealth v. Chamberlain, 612 Pa. 107, 30 A.3d 381, 402 (2011), quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), cert. denied, 566 U.S. 986, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012). Moreover, this Court has held that "the Pennsylvania Constitution provides no more due process than does the U.S. Constitution in the context of lost evidence." Commonwealth v. Coon, 26 A.3d 1159, 1163 (Pa.Super. 2011).

After a thorough review of the record, the parties' briefs, and the relevant statutory and case law, we find the trial court aptly addressed and properly disposed of Appellant's pretrial Brady motion seeking to dismiss his DUI charges on grounds the State Police destroyed the MVR footage in question. As discussed, supra, Appellant failed to make the required showing of bad faith on the part of the State Police with regard to its disposal of what may only be fairly characterized as "potentially useful" evidence to the defense.

Appellant fails to submit any reason to conclude the MVR footage was exculpatory, and there is no dispute the Pennsylvania State Police did not act in bad faith. Accordingly, we conclude he is entitled to no relief on this issue.

In Appellant's remaining claim, he assails the sufficiency of the evidence pertaining to his DUI conviction under Section 3802(a)(1), General Impairment. Our standard of review for such a claim is well-settled:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000) (internal citations omitted) (emphasis added).

Section 3802(a)(1) of the Motor Vehicle Code provides:

(a) General impairment.

(1) An individual may not drive, operate or be in

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