Com. v. Donoughe, M.

2020 Pa. Super. 288

Opinion

2020 PA Super 288

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

MICHAEL D. DONOUGHE :

:

Appellant : No. 639 WDA 2020

Appeal from the Judgment of Sentence Entered June 19, 2020 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003947-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.* OPINION BY STEVENS, P.J.E.: FILED DECEMBER 18, 2020 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

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The court found Appellant not guilty of one count of summary Careless Driving, 75 Pa.C.S.A. § 3714(a).

2 Brady v. Maryland, 373 U.S. 83 (1963) (holding that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).

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 Lougher 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

3

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.

____________________________________________

3Appellant stood 5’6” and weighed approximately 230 pounds. N.T. at 30- 31.

4As part of his post-arrest paperwork routine, Trooper Loughner requested a DVD be made from the MVR footage in anticipation of trial. N.T. at 45-46.

4

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

____________________________________________

5The policy called for disposal of MVR recordings 90 days after a defendant’s acceptance into the ARD program. N.T. at 47.

6In the alternative, Appellant filed a motion in limine seeking preclusion of BAC evidence at trial given the unavailability of the MVR footage. The court denied this motion as well.

5

California v. Trombetta, 467 U.S. 479 (1984),7 Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 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.

____________________________________________

7 To satisfy the Trombetta standard, the defendant must show the evidence “both possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 488-89.

6

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- 38 (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, 800 A.2d 294, 305 (Pa. 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, 30 A.3d 381, 402 (Pa. 2011), quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988), cert. denied, 566 U.S. 986 (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).

7

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, 744 A.2d 745, 751 (Pa. 2000) (internal citations omitted) (emphasis added).

8

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

(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.

75 Pa.C.S.A. § 3802(a)(1).

With regard to the proof necessary to sustain a conviction under section 3802(a)(1), we have previously stated that:

the Commonwealth must show: (1) that the defendant was the operator of a motor vehicle and (2) that while operating the vehicle, the defendant was under the influence of alcohol to such a degree as to render him incapable of safe driving. To establish the second element, the Commonwealth must show that alcohol has substantially impaired the normal mental and physical faculties required to safely operate the vehicle.

Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving.

Commonwealth v. Gause, 164 A.3d 532, 541 (Pa. Super. 2017) (en banc) (citations omitted). See also Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009) (holding types of evidence the Commonwealth may proffer in a subsection 3802(a)(1) prosecution include, inter alia, the offender's manner

9

of driving and ability to pass field sobriety tests, physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech).

Appellant argues that Trooper Loughner’s testimony that he smelled a strong odor of alcohol on Appellant’s breath was insufficient to support his conviction for general impairment under Section 3802(a)(1), particularly where the trooper “did not give a reading of a PBT,” and did not administer a field sobriety test based on Appellant’s combination of relatively short stature and heavy weight. Appellant’s brief, at 16.

As a threshold matter, we find Appellant has waived this claim for his failure to develop a meaningful argument supported by citation to relevant authority. Specifically, Appellant cites to no decisional or statutory law supporting his bare claim that an investigating officer’s observations of physical signs of intoxication are insufficient to prove general impairment beyond a reasonable doubt. “[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.” Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). It is not the role of this Court to “formulate [an a]ppellant's arguments for him.” Id. at 925. For this reason, Appellant’s sufficiency claim is waived.8

____________________________________________

8Even if we were to address Appellant’s sufficiency claim on the merits, we would find the record belies his claims. Trooper Loughner testified he

10

For the foregoing reasons, judgment of sentence is affirmed.

Judge Dubow joins the Opinion.

Judge Olson Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/18/2020

____________________________________________

observed numerous indications that Appellant was intoxicated, including strong odor of alcohol, bloodshot and glassy eyes, very slow movements inside the car as Appellant procured his papers for the trooper’s inspection, and a horizontal gaze nystagmus presentation consistent with impairment. Such evidence sufficed to prove the DUI-General Impairment charge beyond a reasonable doubt. See Gause, supra.

Circulated 12/14/2020 01:57 PM