J-S49043-20
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
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* 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.”).
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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
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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.
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3 Appellant stood 5’6” and weighed approximately 230 pounds. N.T. at 30-
31.
4 As 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.
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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
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5 The policy called for disposal of MVR recordings 90 days after a defendant’s
acceptance into the ARD program. N.T. at 47.
6 In 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.
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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.
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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.
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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).
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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).
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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
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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
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8 Even if we were to address Appellant’s sufficiency claim on the merits, we
would find the record belies his claims. Trooper Loughner testified he
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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
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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.
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Circulated 12/14/2020 01:57 PM
