J-S02022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KRISTOFER CARL CADE,

Appellant No. 95 EDA 2014

Appeal from the Judgment of Sentence of December 6, 2013

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0000090-2013

BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 10, 2015

Appellant, Kristofer Carl Cade, appeals from the judgment of sentence 

entered on December 6, 2013, following his stipulated bench trial conviction 

for persons not to possess a firearm.1 On appeal, counsel filed an 

application to withdraw from representation pursuant to Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v. 

California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s 

behalf. Upon careful consideration, we grant counsel leave to withdraw and 

affirm the judgment of sentence.

The trial court aptly summarized the facts and procedural history of 

this case as follows:

____________________________________________

1

 18 Pa.C.S.A. § 6105.
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On November 11, 2012, Officer [David] Wiley of the 

Abington Police Department conducted a traffic stop of a 

silver Chevrolet Tahoe with a Pennsylvania license plate 

number GPW7435, when it went through a steady red light. 

[Appellant was a passenger in the vehicle.] At the time of 

the traffic stop, the officer detected an odor of marijuana

and observed a partially burnt marijuana cigar. 

Officer Wiley conducted a search incident to arrest due 

to an active [arrest] warrant on Appellant. As a result of 

that search, Officer Wiley found a firearm, a silver and black 

Taurus model PT92AF. The firearm was a semi-automatic 

9-millimeter pistol and it was operable. The firearm was 

loaded with 15 rounds in the magazine and one round in the 

[chamber]. 

Appellant has a prior conviction for possession with 

intent to deliver for importing cocaine, a felony offense 

which prohibits Appellant from possessing a firearm and 

makes him a person not to possess a firearm.

On December 6, 2013, [after waiving his right to a jury 

trial and stipulating to the aforementioned facts, the trial 

court found Appellant guilty of firearm possession and 

sentenced] Appellant [to 31⁄2 to 10 years of imprisonment]. 

A timely appeal was filed on December 26, 2013. In 

response, [the trial court] issued an order directing 

Appellant to file a concise statement of errors complained of 

on appeal in conformance with Pa.R.A.P. 1925(b) (“1925(b) 

statement”). Appellant did not file a 1925(b) statement, 

and instead requested an extension of time. An extension 

was granted, allowing Appellant an additional 30 days from 

January 24, 2014. Appellate counsel did not comply, and 

on March 5, 2014, [the trial court] authored an [o]pinion 

stating that counsel’s failure to file a 1925(b) statement 

precluded a meaningful review. Subsequently, appellate 

counsel filed a petition for limited remand with [this Court]. 

On May 5, 2014, [this Court] remanded the case back to 

[the trial court] for 60 days for the filing of a 1925(b) 

statement and a corresponding [Pa.R.A.P.] 1925(a) 

[o]pinion. On May 19, 2014, appellate counsel filed a 

1925(b) statement and [the trial court filed an opinion on 

May 28, 2014].
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Trial Court Opinion, 5/28/2014, at 1-2.2

On appeal, counsel filed a purported Anders brief in this Court and an 

accompanying application to withdraw as counsel. The Anders brief 

presents two potential issues for our review:

Did the trial court manifestly abuse its discretion and 

commit reversible error when it denied Appellant’s motion 

to suppress evidence obtained from a traffic stop that 

Appellant contends was made without probable cause?

Did the trial court manifestly abuse its discretion and 

commit reversible legal error when it refused to make an 

inference adverse to the Commonwealth where the video 

recording of Appellant’s traffic stop was lost by the police?

Appellant’s Brief at 4 (complete capitalization omitted).

“Initially, we note that we may not address the merits of the issue 

raised on appeal without first reviewing the request to withdraw.” 

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc). Counsel must: 1) petition the court for leave to withdraw stating 

that, after making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy of the brief 

to the defendant; and 3) advise the defendant that he or she has the right to 

retain private counsel or raise additional arguments that the defendant 

deems worthy of the court's attention. Id. (citation omitted).

____________________________________________

2 The trial court’s opinion is not paginated. For ease of reference, we have 

supplied page numbers to our citations. 
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Herein, counsel's petition to withdraw from representation states that 

he reviewed the record and concluded that the appeal is frivolous. 

Additionally, counsel notified Appellant that he was seeking permission to 

withdraw and furnished Appellant with copies of the petition to withdraw and 

Anders brief, and advised Appellant of his right to retain new counsel or 

proceed pro se to raise any points he believes worthy of this Court's 

attention.3 Accordingly, counsel has satisfied the procedural requirements of

Anders.

Having concluded that counsel has complied with the procedural 

mandates of Anders, we now determine whether counsel's Anders brief 

meets the substantive dictates. In the Anders brief that accompanies 

court-appointed counsel's petition to withdraw, counsel must: (1) provide a 

summary of the procedural history and facts, with citations to the record; 

(2) refer to anything in the record that counsel believes arguably supports 

the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; 

and (4) state counsel's reasons for concluding that the appeal is frivolous. 

Id. Counsel should articulate the relevant facts of record, controlling case 

law, and/or statutes on point that have led to the conclusion that the appeal 

is frivolous. Id. (citation omitted).

____________________________________________

3

 Appellant has not responded to counsel’s petition to withdraw.
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Instantly, counsel provided the facts and procedural history of the 

case. Based upon his review, counsel concludes that suppression was not 

warranted because police had probable cause to stop the vehicle at issue for 

a violation of the Motor Vehicle Code. Appellant was a passenger in a car 

that proceeded through a red light in contravention of 75 Pa.C.S.A. 

§ 3112(a)(3)(i). Appellant’s Brief at 23. Appellant also contends that the 

trial court erred by failing to draw an adverse inference against the 

Commonwealth because the police officer’s dashboard camera video was 

destroyed prior to trial. However, counsel concludes that the trial court 

“found that the video recording was lost as a result of a technical error” 

which occurred “when a police technician attempted to download the file 

containing the video recording onto a compact disk or a USB driver ... that 

rendered the video file unusable.” Id. at 30. Counsel notes, the trial court 

found “that the Abington Police Department was not at fault for [the video’s] 

loss.” Id. Further, counsel maintains that the trial court “also determined 

that the lost video recording did not contain any exculpatory evidence.” Id.

Based upon the foregoing, we conclude that counsel has complied with the 

minimum requirements of Anders. We now turn to the issues presented on 

appeal.

In his first issue presented, Appellant contends:

[The trial court] erroneously ruled that there was 

sufficient cause for Officer Wiley to stop [the] Chevrolet 

Tahoe in Abington Township [on the day in question] where 

[Appellant] contends that the controlling traffic signal was 
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green when the Tahoe went through the intersection of 

Mount Carmel Avenue and Limekiln Pike. As a result, 

[Appellant] contends, the stop of his friend’s silver Tahoe 

lacked probable cause, was illegal, and any evidence that 

was discovered following that illegal stop was subject to 

suppression as the fruit of the poisonous tree.

Appellant’s Brief at 18. 

“Our standard of review in addressing a challenge to the denial of a 

suppression motion is limited to determining whether the suppression court's 

factual findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct.” Commonwealth v. 

McAdoo, 46 A.3d 781, 783 (Pa. Super. 2012). “[T]he reviewing court may 

consider only the Commonwealth's evidence and so much of the evidence for 

the defense as remains uncontradicted when read in the context of the of 

the entire record.” Commonwealth v. Lagenella, 83 A.3d 94, 98 (Pa. 

2013). “[I]t is exclusively the province of the suppression court to 

determine the credibility of the witnesses and weight to be accorded their 

testimony.” Commonwealth v. Krisko, 884 A.2d 296, 299 (Pa. Super. 

2005).

A police officer has the authority to stop a vehicle when he or she has 

reasonable suspicion that a violation of the motor vehicle code has taken 

place, for the purpose of obtaining necessary information to enforce the 

provisions of the code. Commonwealth v. Brown, 64 A.3d 1101, 1105 

(Pa. 2013), citing 75 Pa.C.S.A. § 6308(b). “However, if the violation is such 
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that it requires no additional investigation, the officer must have probable 

cause to initiate the stop.” Id. (citation omitted; original emphasis 

omitted). 

Here, the trial court determined that Officer Wiley had probable cause 

to conduct a vehicular stop of the car in which Appellant was riding because 

the driver of the vehicle drove through a steady red light. Trial Court 

Opinion, 5/28/2014, at 3-5. The trial court credited Officer Wiley’s version 

of events. Id. at 4. Officer Wiley testified that he was positioned directly 

behind the silver Chevrolet when he witnessed it travel through a steady red 

light. Id. More specifically, Officer Wiley testified that while the car initially 

veered to the right as if to turn onto Limekiln Pike when the traffic light 

displayed a right green arrow, the car veered back quickly to the left and 

continued straight on Mount Carmel Avenue. Id. However, the light 

remained red for traffic continuing straight and, thus, Officer Wiley instituted 

a traffic stop for running a red light. Id. 

Upon review of the record and based upon our standard of review, we 

discern no abuse of discretion in denying Appellant’s suppression motion. 

Officer Wiley had probable cause that a motor vehicle violation had occurred. 

“Vehicular traffic facing a steady red signal alone shall stop at a clearly 

marked stop line, or if none, before entering the crosswalk on the near side 

of the intersection, or if none, then before entering the intersection and shall 

remain standing until an indication to proceed is shown[.]” 75 Pa.C.S.A. 
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§ 3112 (a)(3)(i). Officer Wiley testified that there was a steady red light at 

the intersection at issue, the driver of the silver Chevrolet started to move 

right as a green arrow indicated, but then veered left and went straight 

through the red light. Here, the trial court credited the police officer’s 

version of events over Appellant’s account of the incident. We will not usurp 

those credibility determinations. Because Officer Wiley had probable cause 

that a motor vehicle code violation occurred, the vehicular stop was 

appropriate. The Anders brief does not challenge any ensuing search or 

seizure and, based upon our independent review of the record, we find that 

they conformed with the law. Accordingly, the trial court’s denial of 

suppression was supported. Hence, Appellant’s first issue fails.

In his next issue presented, Appellant claims the trial court abused its 

discretion when it “failed to take [a]n inference adverse to the 

Commonwealth as a result of the destruction [by the Abington Police 

Department] of the video recording of [] the traffic stop of the silver 

Chevrolet Tahoe in which [Appellant] was riding[.]” Appellant’s Brief at 25. 

Appellant suggests the inference was necessary as a remedy for the alleged 

spoliation. Id. at 26. 

Our Supreme Court summarized the relevant legal principles that 

govern the Commonwealth’s obligation to avoid the suppression or loss of 

exculpatory evidence consistent with the Due Process Clause of the United 
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States Constitution, as interpreted in Brady v. Maryland, 373 U.S. 83 

(1963). Our Supreme Court explained:

In Brady, the [Supreme Court of the United States] held 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. This Court has held that to 

prove a Brady violation, the defendant has the burden of 

demonstrating that: (1) the prosecutor has suppressed 

evidence; (2) the evidence, whether exculpatory or impeaching, 

is helpful to the defendant, and (3) the suppression prejudiced 

the defendant. Prejudice is demonstrated where the evidence 

suppressed is material to guilt or innocence. Further, favorable 

evidence is material, and constitutional error results from its 

suppression by the government, if there is a reasonable 

probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.

Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (internal 

quotation marks and citations omitted).

A different rule applies where the Commonwealth fails to preserve 

evidence that is potentially useful, as opposed to materially exculpatory. 

In cases where the prosecution has discarded potentially useful evidence, a 

due process violation occurs only where the Commonwealth’s failure to 

preserve was done in bad faith, regardless of the centrality of the evidence 

for the prosecution or defense and regardless of whether the evidence was 

introduced at trial. Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 

2009). Where the constitutional right to preservation of evidence is at issue, 
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the Supreme Court of the United States has distinguished “material 

exculpatory evidence” from “potentially useful evidence” as follows:

The Due Process Clause of the Fourteenth Amendment, as 

interpreted in Brady, makes the good or bad faith of the State 

irrelevant when the State fails to disclose to the defendant 

material exculpatory evidence. But we think the Due Process 

Clause requires a different result when we deal with the failure 

of the State to preserve evidentiary material of which no more 

can be said than that it could have been subjected to tests, 

the results of which might have exonerated the defendant

[,i.e. so-called “potentially useful evidence”].

Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (emphasis added). Bad 

faith is shown where evidence is discarded under circumstances “in which 

the police themselves by their conduct indicate that the evidence could form 

a basis for exonerating the defendant.” Id. at 58. 

In this case, the trial court “found that the video did not contain any 

exculpatory evidence.” Trial Court Opinion, 5/28/2014, at 6. The trial court

“concluded that the video from the dash[board] cam[era] was not 

retrievable due to no fault of Officer Wiley.” Id. The trial court’s 

determinations were “based on Officer Wiley’s credible testimony, discerned 

from the officer’s demeanor and lack of motive to be untruthful.” Id. Upon 

review, we agree.

Officer Wiley testified that he and a computer technician “were 

attempting to remove [the video] from [the police computer] server” when 

they “ran into an error and for some reason the video was purged from the 

system[.]” N.T., 8/29/2013, at 9. He testified that the error was not the 
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result of deliberate misconduct. Id. at 10. Officer Wiley said this was the 

first time he had contact with Appellant and he had no reason to be 

dishonest about his dealings with Appellant. Id. at 11.

In this case, there was no evidence presented that the police 

dashboard recording would have definitively shown that the vehicle in which 

Appellant was riding did not drive through a steady red light. Indeed, no 

one saw the content of the video before it was lost. It is equally likely that 

the recording would have corroborated Officer Wiley’s version of events. At 

best, the video in the instant case was merely potentially useful and not 

materially exculpatory. Therefore, Appellant was required to show that the 

Commonwealth acted in bad faith by destroying the recording. The trial 

court determined, and the record confirms, that Officer Wiley did not destroy 

the video in bad faith, but its damage resulted from a technical error. Thus, 

we reject Appellant’s second claim as presented.

Further, after an independent review of the entire record, we see 

nothing that might arguably support this appeal. See Commonwealth v. 

Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the 

Anders brief triggers the duty of our Court to conduct an independent 

review of the entire record to make sure counsel has fully represented his 

client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly, 

we affirm Appellant’s judgment of sentence and grant counsel’s petition for 

leave to withdraw appearance.
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Petition for leave to withdraw as counsel granted. Judgment of 

sentence affirmed.

Judge Wecht joins this memorandum.

Judge Mundy concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2015