J-A13008-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

FRANCIS ADAMS, JR. 

 Appellant No. 829 WDA 2014 

Appeal from the Judgment of Sentence October 29, 2013 

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-SA-0000005-2013 

BEFORE: PANELLA, J., SHOGAN, J., and OTT, J. 

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 4, 2015 

Appellant, Francis Adams, Jr., appeals from the judgment of sentence 

entered October 29, 2013, by the Honorable John F. Wagner, Jr., Court of 

Common Pleas of Fayette County. After careful review, we affirm. 

 As we write primarily for the benefit of the parties, we will set forth 

only so much of the procedural and factual history of the appeal as is 

necessary to this memorandum. Pennsylvania State Trooper Christina Marth 

was traveling in her cruiser when she ran the registration on a vehicle she 

observed, which returned records indicating that the registered owner of the 

vehicle had a DUI related driver’s license suspension. Trooper Marth, using a 

PennDot picture of Adams’s driver license, identified Adams through the 

mirrors of the car as the driver. Trooper Marth issued a seat belt warning 
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and a traffic citation to Adams for driving while operating privilege is 

suspended or revoked. 

 After a summary trial, Adams was found guilty of driving while his 

operating privilege was suspended or revoked pursuant to 75 Pa.C.S.A. § 

1543(b). Adams was later sentenced to 60 days of intermediate punishment 

to be served in house arrest with electronic monitoring. Adams subsequently 

filed a post-sentence motion, which the trial court denied. 

Adams then filed a petition for reinstatement of direct appeal rights 

nunc pro tunc, which was granted. This timely appeal followed. 

On appeal, Adams challenges the sufficiency and weight of the 

evidence supporting his conviction for driving while operating privilege is 

suspended or revoked. Adams also claims that the Commonwealth’s failure 

to provide pertinent evidence violated his due process rights. 

We review a challenge to the sufficiency of the evidence as follows. 

 The standard we apply when reviewing the sufficiency of 

the evidence is whether viewing all the evidence admitted at trial 

in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying the 

above test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. In addition, we note that the facts 

and circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of facts may be drawn from the combined

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 
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all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced is free to believe all, part or 

none of the evidence. Furthermore, when reviewing a sufficiency 

claim, our Court is required to give the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence. 

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused’s guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review. 

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted). 

 Adams’s sufficiency of the evidence claim consists of a suppression of 

the evidence claim and an ex post facto constitutional claim within his 

sufficiency of the evidence argument. Neither of these claims, of course, 

even constitute a challenge to the sufficiency of the evidence. (In any event, 

neither was even raised in the court below. See Pa.R.A.P. 302(a)). Adams 

also challenges the sufficiency of the evidence by asserting that “[t]estimony 

and an [e]xpert’s opinion this Honorable [c]ourt accepted as fact directly 

contradicts and undermines Trooper Marth’s testimony and credibility.” 

Appellant’s Brief, at 12. This is also not a sufficiency of the evidence claim, 

as questions of credibility should be raised as weight of the evidence claims. 

See Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997). 

 We next address Adams’s weight of the evidence claim. The finder of 

fact is the exclusive judge of the weight of the evidence as the fact finder is 
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free to believe all, part, or none of the evidence presented and determines 

the credibility of the witnesses. See Commonwealth v. Champney, 832 

A.2d 403, 408 (Pa. 2003). As an appellate court, we cannot substitute our 

judgment for that of the finder of fact. See id. Therefore, we will reverse a 

jury’s verdict and grant a new trial only where the verdict is so contrary to 

the evidence as to shock one’s sense of justice. See Commonwealth v. 

Passmore, 857 A.2d 697, 708 (Pa. Super. 2004). 

A verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when “the figure of Justice totters on her pedestal,” or 

when “the jury’s verdict, at the time of its rendition, causes the trial judge to 

lose his breath, temporarily, and causes him to almost fall from the bench, 

then it is truly shocking to the judicial conscience.” Commonwealth v. 

Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d,

938 A.2d 198 (Pa. 2007). 

Furthermore, 

where the trial court has ruled on the weight claim below, 

an appellate court’s role is not to consider the underlying 

question of whether the verdict is against the weight of 

the evidence. Rather, appellate review is limited to 

whether the trial court palpably abused its discretion in 

ruling on the weight claim. 

Champney, 832 A.2d at 408 (citation omitted). 

Adams challenges the weight the trial court afforded to Trooper 

Marth’s testimony. The witnesses Adams presented testified that it was 

impossible for Trooper Marth to identify Adams through the windows due to 
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the dirt accumulated on them. Adams believed this effectively contradicted 

Trooper Marth’s testimony that she was able to identify Adams through the 

rear view and side mirrors of the car. The trial court, acting as the factfinder, 

was free to determine the weight to give Adams’s expert, in light of Trooper 

Marth’s testimony. “It is beyond argument that the fact-finder is free to 

accept or reject the credibility of both expert and lay witnesses, and to 

believe all, part or none of the evidence.” Gunn v. Grossman, 748 A.2d 

1235, 1240 (Pa. Super. 2000) (citation omitted). The trial court found that 

the testimony of Trooper Marth was more credible. We do not find such a 

verdict, placing faith in a sworn officer of the law’s testimony, to be against 

the evidence as to shock one’s sense of justice. Thus, Adams’s argument 

merits no relief. 

Adams final argument is that the Commonwealth’s failure to provide 

pertinent evidence violated his right to due process. Specifically, that the 

Commonwealth’s failure to produce the mobile video recording (“MVR”) of 

the traffic stop was in direct violation of Brady v. Maryland, 373 U.S. 83 

(1963).1 

____________________________________________ 

1

 Adams attempts to raise two sub-arguments within his Brady claim. First, 

that Pennsylvania State Police did not follow policy in regards to retaining 

the MVR. Second, that the policy as written violates Brady. Adams did not 

raise either claim in the lower court. Therefore, we deem them waived. See

Pa.R.A.P. 302(a). 
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In Brady, the Court decided 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.” Id., at 87 (emphasis 

added). To prove a Brady violation, the defendant bears 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.” Commonwealth v. 

Koehler, 36 A.3d 121, 133 (Pa. 2012) (citation omitted). 

Adams cannot prove that the Commonwealth suppressed the evidence. 

No Brady violation occurs where the parties had equal access to the 

information or if the appellant knew or could have uncovered such evidence 

with reasonable diligence. See Commonwealth v. Collins, 888 A.2d 564, 

578 (Pa. 2005). Adams had a 31-day window in which he could have 

accessed the MVR video. See Reproduced Record, at 97a.2 During this 31-

day period, there was equal access to the MVR. Reasonable diligence on the 

part of Adams would have provided him access to the MVR. Therefore, since 

____________________________________________ 

2

 A letter referencing the departmental policy for retention of mobile 

video/audio recordings has been included in the reproduced record. It is not 

in the certified record. This Court has, under certain circumstances, 

overlooked an omission of material from the certified record when it could be 

found in the reproduced record. See, e.g., Stewart v. Owens-Corning 

Fiberglas, 806 A.2d 34, 37 n.3 (Pa. Super. 2002). See also Pa.R.A.P. 

1921 Note. No one has disputed the letter’s authenticity and we will 

therefore consider it in the disposition of this issue. 
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there was equal access to the MVR no Brady violation has occurred. See

See Collins, 888 A.2d at 578. 

Second, a Brady claim is valid only if the withheld evidence was 

exculpatory, as compared to “potentially useful,” and there was a showing of 

bad faith on the part of the Commonwealth. See Commonwealth v. 

Snyder, 963 A.2d 396, 406 (Pa. 2009). Here, the attorney for the 

Commonwealth contends that the MVR was never in their possession. See 

Appellee’s Brief, at 6. Adams provided no evidence to prove otherwise. 

Furthermore, Adams make no assertion as to the MVR’s relevance to the 

case at hand. 

Adams also baldly claims that “the failure of the Commonwealth to 

provide the Petitioner with NCIC records prior to trial violates” Brady. 

Appellant’s Brief, at 22. That is the sum and substance of this claim; it is 

completely undeveloped. Therefore, we deem the argument pertaining to the 

NCIC records waived. See Commonwealth v. Bavusa, 832 A.2d 1042, 

1052 (Pa. 2003) (reiterating that arguments for undeveloped claims are 

waived). 

Judgement of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/4/2015