Com. v. Westlake, C.

2023 Pa. Super. 94, 295 A.3d 1281
CourtSuperior Court of Pennsylvania
DecidedMay 31, 2023
Docket361 WDA 2022
StatusPublished
Cited by40 cases

This text of 2023 Pa. Super. 94 (Com. v. Westlake, C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Westlake, C., 2023 Pa. Super. 94, 295 A.3d 1281 (Pa. Ct. App. 2023).

Opinion

J-A06016-23

2023 PA Super 94

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER SEAN WESTLAKE : : Appellant : No. 361 WDA 2022

Appeal from the Judgment of Sentence Entered March 24, 2022 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000332-2019

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

OPINION BY NICHOLS, J.: FILED: MAY 31, 2023

Appellant Christopher Sean Westlake appeals pro se from the judgment

of sentence entered after a jury convicted him of two counts of driving under

the influence of a controlled substance (DUI).1 On appeal, Appellant contends

that the trial court erred in denying his second omnibus motion as untimely.

After review, we affirm Appellant’s convictions, vacate the judgment of

sentence, and remand for resentencing.

The trial court summarized the relevant facts and procedural history of

this matter as follows:

[The] charges stem from an incident that occurred on April 3, 2018. On that date, [Appellant] was stopped by the Pennsylvania

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 75 Pa.C.S. § 3802(d)(1)(ii) and (iii). In a separate bench trial at this docket, Appellant was also convicted of the summary offense of driving an unregistered vehicle in violation of 75 Pa.C.S. § 1301(a). J-A06016-23

State Police (“PSP”) while driving his vehicle in North Buffalo Township, Armstrong County. The traffic stop was recorded by the mobile video recording (“MVR”) system used by the PSP. Based on the PSP’s observations and investigation during and after the traffic stop, [Appellant] was charged by criminal complaint filed November 12, 2018, with DUI and driving related charges. All charges were held over to [the trial c]ourt, and a criminal information was filed on May 2, 2019.

[Appellant], by counsel, filed an omnibus pretrial motion to dismiss on November 12, 2019, in which he argued that all charges should be dismissed due to the PSP’s alleged destruction of, or failure to produce to him, a working copy of the downloaded MVR video recorded at the scene of the traffic stop. After multiple continuances, the [trial c]ourt held a hearing on the motion on August 17, 2020. The [trial c]ourt thereafter denied [Appellant’s] motion by order entered on October 19, 2020. In the accompanying memorandum, [the trial c]ourt concluded that the MVR video was not exculpatory and was only potentially useful given that [Appellant] had not challenged any aspects of the underlying traffic stop. See [Trial Ct. Mem.], 10/19/20, at 5-6 &

-2- J-A06016-23

n.6.[2] The [trial c]ourt further concluded that the Commonwealth had not acted in bad faith.[3]

[Appellant’s] counsel withdrew his appearance, at [Appellant’s] request and with [the trial c]ourt’s approval,[4] on November 20, 2020. On February 22, 2021, [Appellant] submitted to the Commonwealth a pro se request for additional discovery, in which he again requested access to the MVR video and other materials. On March 25, 2021, [Appellant] filed a pro se motion to compel outstanding discovery seeking the same items. On May 21, 2021, after hearing, the [trial c]ourt granted [Appellant’s] motion, in part, but only to the extent that the requested materials had not already been provided to [Appellant] or his prior counsel.

On July 26, 2021, [Appellant] filed pro se a motion to dismiss for prosecutorial misconduct, in which he argued once again that the Commonwealth had not produced to him certain outstanding discovery. After hearing on August 5, 2021, the [trial c]ourt ____________________________________________

2 The footnote to the trial court’s October 19, 2020 memorandum addressing

Appellant’s first omnibus motion states as follows:

Although the [trial c]ourt has addressed the issue of whether the MVR video would be exculpatory, [Appellant] nowhere in his omnibus motion argues that it is exculpatory. He makes this argument only in his brief. Moreover, the MVR video would be relevant and potentially useful if the issues of the validity of the traffic stop of [Appellant’s] vehicle, [Appellant’s] continued detention after the initial stop, or his subsequent arrest were raised in an omnibus pre-trial motion. At no time has [Appellant] raised any of these issues despite the fact that this case has been pending in this [c]ourt for approximately 18 months.

Trial Ct. Mem., 10/19/20, at 6, n.6 (emphases in original).

3 The record reflects that Trooper Randy Orlic, a PSP MVR custodian, testified

that the reason the MVR video was unavailable was it was no longer on the police server, and the PSP could not make a copy of the MVR video because there was an error with the disk upon which the video was copied. See N.T., 8/17/20, at 44-45. Trooper Orlic testified that neither he nor anyone from the District Attorney’s office could get the MVR video to play. See id. at 46.

4 The trial court granted counsel’s motion to withdraw. See Order, 11/20/20.

-3- J-A06016-23

granted the motion in part and ordered the Commonwealth to provide [Appellant] with certain requested items, including access to the MVR video. [Appellant] then filed the subject omnibus pretrial motion, his second, on October 28, 2021. In the motion, [Appellant] challenged the duration of the traffic stop, the PSP troopers’ justification for continuing the stop after the purpose for the initial stop had concluded, the probable cause supporting [Appellant’s] arrest, and the validity of the drug recognition expert (“DRE”) evaluation conducted after the stop at the PSP barracks.

On November 4, 2021, after argument on the record, the [trial c]ourt denied the motion based on 1) its untimeliness, 2) the Commonwealth’s prior provision of discovery, and 3) [Appellant’s] ability to raise the same issues either in previous motions or at trial. See Order, 11/4/21; N.T., 11/4/21, 3:13 -21:13.

Trial Ct. Op., 4/25/22, at 2-4.

Prior to jury selection, and almost one year after the trial court granted

Appellant’s counsel’s motion to withdraw in 2020, the trial court held a

Grazier hearing.5 At that time, the trial court conducted an on-the-record

colloquy and determined that Appellant was knowingly, voluntarily, and

intelligently waiving his right to counsel. See N.T., 11/8/21, at 6. The case

proceeded to a jury trial on November 12, 2021, and Appellant was ultimately

found guilty of two counts of DUI. Following a separate bench trial, Appellant

was convicted of the summary offense of driving an unregistered vehicle. On

March 24, 2022, the trial court sentenced Appellant on the first DUI count, 75

Pa.C.S. § 3802(d)(1)(ii) (DUI-schedule II or III controlled substance), to a

term of ninety days to thirty-six months of incarceration, with fifty-three days ____________________________________________

5 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (explaining the

procedure necessary to determine, on the record, that a defendant is knowingly, intelligently, and voluntarily, waiving the right to counsel).

-4- J-A06016-23

to be spent in total confinement and thirty-seven days served on house arrest.

Sentencing Order, 3/24/22. On the second count of DUI, 75 Pa.C.S. §

3802(d)(1)(iii) (DUI-metabolite of schedule I, II, or III), the trial court

imposed a sentence of no further penalty. Id.6 Appellant filed a timely notice

of appeal, and both the trial court and Appellant complied with Pa.R.A.P.

1925.7 ____________________________________________

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Bluebook (online)
2023 Pa. Super. 94, 295 A.3d 1281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-westlake-c-pasuperct-2023.