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Home My WebLink About92-981 Criminala(L 10/16/92 COMMONWEALTH V. PAUL B. OWENS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P NNSYLVANIA 981 CRIMINAL 1992 CHARGE: APPEAL FROM SUMMARY: SPEEDING AFFIANT: PTL. LON S RAYER ORDER OF COURT AND NOW, this ii J� day of October, 1992 consideration of Defendant's Post -Verdict Motion submitted thereon, Defendant's Motion is DENIED, an is directed to appear for sentencing at the call Attorney. upon careful .nd the briefs the Defendant E the District BY THE COURT, J.( iWesley OlerIrr- r.', J: Kathleen Dick Leslie, Intern Office of the District Attorney Paul B. Owens, Pro Se 660 Boas Street Apartment 1501 Harrisburg, PA 17102 :rc COMMONWEALTH V. PAUL B. OWENS, Defendant Oler, J. IN THE COURT OF COMM N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 981 CRIMINAL 1992 CHARGE: APPEAL FROM SUMMARY: SPEEDING AFFIANT: PTL. LON SRAYER UnAMM / Q DnCM XTVDnTnM MnMT M BEFORE OLER, J. OPINION AND ORDER OF COURT At issue in the present case is a Post -Verdict otion filed by Paul B. Owens (Defendant) after a trial on a summary appeal in the Court of Common Pleas of Cumberland County. The facts of this case are as follows: On April 11, 1992, Patrolman Lon Strayer of the Lemoyne Borough Police Department was using an Acutrak system. to monitor the speeds of passing vehicles on Lowther Street in Lemoyne. Patrolman Strayer. testified that at 9:45 a.m., while using this system, he observed Defendant travelling at a speei of 53.8 miles per hour in a 35 mile per hour zone. Subsequently, the officer stopped Defendant and issued a citation to him for speeding. Defendant testified that he had asked to see the reading on the Acutrak device, and that Patrolman Strayer had refused to show it to him. On the other hand, Patrolman Strayer testified that Defendant had not asked to see the Acutrak reading. Additionally, the officer stated that, had Defendant request d to see the reading, he would have been permitted to do so. At the conclusion of the trial, Defendant was Ifound guilty of 981 Criminal 1992 speeding, in violation of Section 3362(a)(1) of the' Vehicle Code.' Specifically, it was determined that he was travel ng at the rate of 53.8 miles per hour in a 35 mile -per -hour zone. Defendant has filed pro se the present post -Verdict motion, requesting that the Court "vacate the judgment," contending that Patrolman Strayer's alleged refusal to show the Acu rak reading to him was a violation of his right to view the Commonwealth's evidence against him. Since we find that Def en ant has shown neither a violation of a constitutional right nor a violation of a right under the Rules of Criminal Procedure, Def4ndant's motion must be denied. Defendant first contends that, in failing to a low him to see the Acutrak reading, Patrolman Strayer denied Defendant's due process right to view the Commonwealth's evidenCE against him .2 In making this contention, Defendant relies upon the holding of the United States Supreme Court that "the suppr ssion by the prosecution of evidence favorable to an accuse violates due process where the evidence is material or to punishment." Brady v. Maryland, 373 U.S. 83, 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). ' prevail on a claimed violation of Brady, ... proof each of the following: '(a) suppression by the pros4 ' 75 Pa. C.S. §3362(a)(1). 2 Defendant's Post -Verdict Motion, at 2. E upon request either to guilt 87, 83 S. Ct. In order to is required of scution after a 981 Criminal 1992 request by the defense; (b) evidence's favorable character for the defense; and (c) the materiality of the evidence.' Commonwealth v. York, 319 Pa. Super. 13, 18, 465 A.2d 1028, 1031 1983), quoting Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972).3 The circumstances in the present case militate against a conclusion that the Defendant has met his burden in this regard. First, the element of a request for exculpatory information has been placed in serious question by the testi ony of Officer Strayer. Second, the Defendant's proof as to the exculpatory nature of the information sought is insufficient. n this regard, it is well settled that in order to succeed on a claimed violation of the Brady doctrine a defendant must establish that the evidence which he or she was seeking was favorable to the defense. Commonwealth v. York, 319 Pa. Super. 13, 465 A.21 1028 (1983). Under Brady, the prosecution's duty to make evidence available to the defense applies only to evidence that is "truly exculpatory, rather than merely favorable." Commonwealth v. Ges,, 467 Pa. 123, 131, 354 A.2d 875, 878 (1976). "A piece of evidence cannot be said to be Exculpatory, or potentially exculpatory, merely because the defense chooses to call 3 See also Commonwealth v. Powell, 449 Pa. 126, 295 A.2d 295 (1972). Where a defendant alleges that the prosecution has violated the constitutional mandates of Brady, the defendant bears the burden of proving all three elements of a Brady claim. Commonwealth v. McCleaf, 11 Adams L.J. 115 (1969). 3 981 Criminal 1992 it so." Commonwealth v. Favinger, 358 Pa. Super. 245, 251, 516 A.2d 1386, 1389 (1986). It is not sufficient f r a defendant merely to contend that the evidence in question could have been favorable to the defense. Rather, the defendant Aust prove that the evidence "extrinsically tends to establish the defendant's innocence of the crimes charged." Id. at 251, 516 A.2d at 878. In the present case, the Defendant can argue at most that a view of the reading might have been exculpatory. Defendant also contends that, pursuant to Penns lvanials Rules of Criminal Procedure, he has a right to view the evidence against him.° He further contends that Patrolman Strayer's refusal to show him the Acutrak reading constituted a violation of this right. When a summary conviction is appealed to a court of common pleas, the court treats the proceeding as a trial de novo, and "all general provisions of the criminal rules become ap licable to the trial ... unless specifically made inapplicable." Commonwealth v. Koch, 288 Pa. Super. 290, 294, 431 A.2d 1052, 1054 (1981). In Koch, the Superior Court referred to Pennsylvania Rale of Criminal Procedure 1100 as an example of a criminal rule specifically made inapplicable to an appeal from a summary convicti n. Id. at 294 n.5, 431 A.2d at 1054 n.5. Since Rule 1100 is applicable to trials in "a court case," and since Pennsylvania Rue of Criminal Procedure 3(f) defines a court case "as a case in wl ich one or more ° Defendant's Post -Verdict Motion, at 2. 4 981 Criminal 1992 of the offenses charged is a misdemeanor, felony first or second degree," Rule 1100 was held inappli proceedings. Id. murder of the le to summary In the present case, Defendant's asserted rigkit to view the Acutrak reading is premised upon Pennsylvania Rule of Criminal Procedure 305(B)(1), which provides that " [ i ] n all *ourt cases, on request by the defendant, ... the Commonwealth sh 11 disclose to the defendant's attorney all of the following req sted items or information (emphasis added). As in the exa Koch, Rule 305(B)(1) requires disclosure of ev, cases. As such, it is generally considered inappli from summary convictions.' Without suggesting that there are no circu summary offense which might warrant pretrial discove under Brady, this Court does not believe the presents a compelling case for such relief. For reasons, the following Order will be entered: ORDER OF COURT AND NOW, this /(& day of October, 1992, consideration of Defendant's Post -Verdict Motion )le provided in fence in court able to appeals mstances of a ry not required ent litigation the foregoing upon careful ind the briefs ' The Comment to Rule 305 states that "[ ]his rule is intended to apply only to court cases. [However, the constitutional guarantees of the Brady doctrine] apply to all cases, including court cases and summary cases, and nothing tp the contrary is intended." See also Commonwealth v.Y st, 29 D. & C. 3d 251 (Clinton Co. 1984) (holding Pennsylvania Ru a of Criminal Procedure 305 inapplicable to an appeal from summa convictions). 5 981 Criminal 1992 submitted thereon, Defendant's Motion is DENIED, ano the Defendant is directed to appear for sentencing at the call df the District Attorney. BY THE COURT, J. Wesley Oler, Jr., Kathleen Dick Leslie, Intern Office of the District Attorney Paul B. Owens, Pro Se 660 Boas Street Apartment 1501 Harrisburg, PA 17102 :rc 51 IJ.