Commonwealth v. Loughnane

128 A.3d 806

2015 PA Super 245

COMMONWEALTH of Pennsylvania, Appellant

v.Daniel F. LOUGHNANE.

Superior Court of Pennsylvania.

Argued Dec. 9, 2014.

Filed Nov. 23, 2015.

Reargument Denied Feb. 1, 2016.

James L. McMonagle, Assistant District Attorney, Wilkes–Barre, for Commonwealth, appellant.

Peter P. Olszewski, Jr., Scranton, for appellee.

Opinion

OPINION BY FORD ELLIOTT, P.J.E.:

This case concerns the hit and run fatality of Rebecca Marian McCallick. Herein, the Commonwealth appeals from the order of March 17, 2014, which granted in part and denied in part Daniel Loughnane's (“appellee's”) motion in limine.¹ We affirm in part and reverse in part and remand for further proceedings.²

The facts, as summarized by the suppression court, are as follows:

1. On July 24, 2012, at approximately 2:23 a.m., Wilkes–Barre City Police responded to the area of 199 Hazle Street and began an investigation into the death of an individual who had been struck and killed by a motor vehicle.

2. The individual struck and killed on Hazle Street during the early morning hours of July 24, 2012 was identified as Rebecca McCallick.

3. Officer James Fisher of the Wilkes–Barre City Police Department responded to the scene and interviewed a witness, John Schenck, III.

4. A description of the vehicle that struck Ms. McCallick was obtained from John Schenck, III by Officer Fisher.

5. John Schenck, III described the vehicle as a “large, dark colored truck with loud exhaust, possibly a diesel.”

6. Officer Fisher provided the description of the vehicle he received from John Schenck, III to other patrol units in the area in an attempt to locate the vehicle.

7. On July 24, 2012, Peter Sladin was employed by Legion Security and was working in the Hawkeye Camera Center, which is located in the Wilkes–Barre City Police Station.

8. During the early morning hours of July 24, 2012, Mr. Sladin was monitoring the Hawkeye camera system in the City of Wilkes–Barre.

9. While monitoring the camera system, Mr. Sladin heard that an accident had occurred at 199 Hazle Street as well as a description of the vehicle involved.

10. Mr. Sladin began reviewing cameras in the area of 199 Hazle Street to see if he could locate the vehicle he had heard a description of.

11. While reviewing a camera located at Northampton Street and Wilkes–Barre Boulevard, Mr. Sladin observed a “dark colored full size pickup truck heading south on Wilkes–Barre Boulevard” at approximately 2:19 a.m.

12. Mr. Sladin took a snapshot of the vehicle from the video and provided it to Wilkes–Barre City Police.

13. The photograph fairly and accurately depicted the image of the vehicle Mr. Sladin saw on the video and had not been altered.

14. There is no evidence to suggest that any member of the Wilkes–Barre City Police Department altered the photograph of the vehicle Mr. Sladin obtained from the video.

15. On July 25, 2012, the investigation of the accident was assigned to Wilkes–Barre City Detective, David Sobocinski.

16. As part of his investigation, Detective Sobocinski requested all videos, photographs or other evidence from Hawkeye.

17. The Hawkeye camera system only preserves the videotapes for a period of 10 to 14 days.

18. Prior to Detective Sobocinski's request, the videotape containing the image of the pickup truck was taped over by the Hawkeye camera system.

19. Although attempts were made to recover the video from which the photograph had been generated, it could not be done.

20. At no time was the video intentionally erased or deleted.

21. Nothing in the record indicates that the Commonwealth withheld any evidence favorable to [appellee].

22. Detective Sobocinski received the photograph of a pickup truck heading south on Wilkes–Barre Boulevard which he did not alter in any manner.

23. On July 24, 2012, John Schenck, III, resided at 197 Hazle Street in Wilkes–Barre, Pennsylvania and his girlfriend at the time was Rebecca McCallick.

24. At the time the vehicle struck Rebecca McCallick, John Schenck, III was in the front room of his apartment looking out the window.

25. John Schenck, III saw the vehicle strike Rebecca McCallick on Hazle Street in Wilkes–Barre during the early morning hours of July 24, 2012.

26. John Schenck, III called 911 and reported the accident.

27. The photograph of a pickup truck was viewed by John Schenck, III and he indicated that it fairly and accurately depicted the vehicle that struck Rebecca McCallick.

28. A vehicle fitting the description of the pickup truck that struck Rebecca McCallick was located by the father of John Schenck, III on August 8, 2012 in a driveway at 71 Liberty Street, Ashley, Pennsylvania.

29. John Schenck, III then positively identified the vehicle located in the driveway at 71 Liberty Street, Ashley as the pickup truck that struck Rebecca McCallick.

30. Although he attempted to do so, Detective Sobocinski of the Wilkes–Barre City Police Department was unable to locate the owner of the vehicle.

31. During the early morning hours of August 9, 2012, the pickup truck was seized from the driveway at 71 Liberty Street in Ashley and towed to Wilkes–Barre City Police headquarters and placed in the basement garage.

32. No search warrant was obtained before the pickup truck was seized from the driveway located at 71 Liberty Street in Ashley.

33. Detective Sobocinski of the Wilkes–Barre City Police Department could have requested assistance from law enforcement to secure the pickup truck while he obtained a search warrant prior to seizing the vehicle.

34. Nothing prevented Detective Sobocinski from obtaining a search warrant prior to the seizure of the pickup truck on August 9, 2012.

35. Although the pickup truck was seized on August 9, 2012, no search warrant was prepared until August 13, 2012.

36. The pickup truck was not searched until a search warrant was obtained by Detective Sobocinski.

37. At the time [appellee's] pickup truck was seized without a warrant, the vehicle was located on private property and [appellee] was not in custody.

38. Visual identification of [appellee's] pickup truck in the Wilkes–Barre City garage on August 14, 2012 by John Schenck, III, occurred four days after the vehicle was seized without a warrant.

39. This identification by John Schenck, III may have taken place before or after a search warrant was obtained and the vehicle searched.

40. On August 14, 2012, four days after the vehicle was seized without a warrant, a sound identification was performed on the vehicle on State Street outside the Wilkes–Barre City Police Department.

Findings of fact and conclusions of law, 3/17/14 at 1–5.

Appellee was arrested on December 18, 2012, and charged with one count of accidents involving death or personal injury, 75 Pa.C.S.A. § 3742(a). On July 30, 2013, appellee filed an omnibus pretrial motion, which included the following:

1. A motion in limine to exclude all “still photographs of the vehicle traveling toward the scene ... at the time of the incident” based on the Commonwealth's inability to authenticate security videotapes as mandated by Pa.R.E. 901;

2. A motion in limine to exclude all “still photos of the vehicle traveling toward the scene ... at the time of the incident” based upon the Commonwealth's inability to comply with the best evidence rule;

....

4. A motion to suppress all “still photos of the vehicle traveling toward the scene ... at the time of the incident” based upon the Commonwealth's failure to disclose exculpatory evidence;

5. A motion to suppress seizure of appellee's 2006 Ford F–350 pickup truck as well as items seized from the vehicle;³

6. A motion to strike/suppress out of court identification of appellee's Ford F–350 pickup truck as unduly suggestive;

7. A motion to suppress investigators “controlled test drive” resulting in the sound identification of appellee's Ford F–350 pickup truck as unduly suggestive;

8. A motion in limine to exclude the audio version of the 9–1–1 call made by Schenck;

9. A motion for an individual voir dire; 10. A motion to suppress inflammatory photographs.

See Docket # 21.

A hearing was held on February 18, 2014; and on March 17, 2014, the suppression court entered an order granting the motion in part and denying the motion in part. (Docket # 27.) The suppression court held the only Commonwealth witness that could authenticate the still photos of the vehicle on the videotape was Schenck; Sladin was prohibited from providing any testimony of his observations of the video. The court granted appellee's motion concerning the seizure of the truck and all items seized. The court also granted appellee's motion and suppressed evidence regarding the out-of-court identification and the sound identification of appellee's truck. The suppression court granted the motion in limine to exclude the audio version of the 911 call made by Schenck. The court reserved ruling on the motion to suppress inflammatory photographs until the time of trial.

On March 27, 2014, another pre-trial conference was held, and the Commonwealth asked for clarification regarding the court's order in terms of the testimony of Sladin. The court responded:

Mr. Sladin could testify that the photo was obtained from the video system. He can't testify to the time or location of the vehicle in the photo because the tape was not able to be provided to the defense and the tape is no longer—he watched the tape—So it's my ruling that the photo—he could testify that the photo comes from the Hawkeye system but he will not be allowed to testify as to the place and time of the photo or the vehicle in the photo.

Notes of testimony, 3/27/14 at 2–3. The Commonwealth filed a notice of appeal on March 28, 2014. On May 22, 2014, the suppression court referred this court to its March 17, 2014 findings of fact and conclusions of law in lieu of an opinion pursuant to Pa.R.A.P.1925(a)(1).

The Commonwealth presents the following issues for our review:

1. Did the Court err when it excluded testimony from Peter Sladin about Commonwealth Exhibit # 1 when it found the security tapes and still photos...