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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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, 20 13 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 jud gment of sentence entered October 29, 2013, by the Honorable John F. Wagner, Jr., Court of Common Pleas of Fayette County. After careful revie w, we affirm. As we write primarily for the benefit of the parti es, we will set forth only so much of the procedural and factual history of the appeal as is necessary to this memorandum. Pennsylvania State Tr ooper Christina Marth was traveling in her cruiser when she ran the regis tration on a vehicle she observed, which returned records indicating that th e registered owner of the vehicle had a DUI related driver’s license suspensi on. Trooper Marth, using a PennDot picture of Adams’s driver license, identifi ed Adams through the mirrors of the car as the driver. Trooper Marth iss ued a seat belt warningJ-A13008-15

- 2 -

and a traffic citation to Adams for driving while o perating privilege is suspended or revoked. After a summary trial, Adams was found guilty of d riving while his operating privilege was suspended or revoked pursua nt to 75 Pa.C.S.A. § 1543(b). Adams was later sentenced to 60 days of in termediate punishment to be served in house arrest with electronic monito ring. Adams subsequently filed a post-sentence motion, which the trial court denied. Adams then filed a petition for reinstatement of di rect appeal rights nunc pro tunc , which was granted. This timely appeal followed. On appeal, Adams challenges the sufficiency and wei ght of the evidence supporting his conviction for driving whil e operating privilege is suspended or revoked. Adams also claims that the Co mmonwealth’s failure to provide pertinent evidence violated his due proc ess rights. We review a challenge to the sufficiency of the evi dence as follows. The standard we apply when reviewing the sufficien cy of the evidence is whether viewing all the evidence ad mitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to fi nd every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and subst itute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth n eed not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finde r unless the evidence is so weak and inconclusive that as a matt er of law no probability of facts may be drawn from the combined circumstances. The Commonwealth may sustain its bur den of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence. Moreove r, in applying the above test, the entire record must be evaluated andJ-A13008-15

- 3 -

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 beli eve all, part or none of the evidence. Furthermore, when reviewing a sufficiency claim, our Court is required to give the prosecutio n the benefit of all reasonable inferences to be drawn from the evid ence. 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 rea sonable doubt. The trier of fact cannot base a conviction on conje cture and speculation and a verdict which is premised on susp icion 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 e x post facto constitutional claim within his sufficiency of the evidence argument. Neither of th ese claims, of course, even constitute a challenge to the sufficiency of t he 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 ac cepted as fact directly contradicts and undermines Trooper Marth’s testimon y and credibility.” Appellant’s Brief, at 12. This is also not a suffic iency of the evidence claim, as questions of credibility should be raised as wei ght 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 cla im. The finder of fact is the exclusive judge of the weight of the ev idence as the fact finder isJ-A13008-15

- 4 -

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 su ch 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 rendit ion, causes the trial judge to lose his breath, temporarily, and causes him to alm ost fall from the bench, then it is truly shocking to the judicial conscienc e.” Commonwealth v. Davidson , 860 A.2d 575, 581 (Pa. Super. 2004) (citations om itted), 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 un derlying question of whether the verdict is against the weig ht of the evidence. Rather, appellate review is limited t o whether the trial court palpably abused its discret ion in ruling on the weight claim. Champney , 832 A.2d at 408 (citation omitted). Adams challenges the weight the trial court afforde d to Trooper Marth’s testimony. The witnesses Adams presented te stified that it was impossible for Trooper Marth to identify Adams thro ugh the windows due toJ-A13008-15

- 5 -

the dirt accumulated on them. Adams believed this e ffectively contradicted Trooper Marth’s testimony that she was able to iden tify Adams through the rear view and side mirrors of the car. The trial co urt, acting as the factfinder, was free to determine the weight to give Adams’s ex pert, 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). Th e trial court found that the testimony of Trooper Marth was more credible. W e do not find such a verdict, placing faith in a sworn officer of the la w’s testimony, to be against the evidence as to shock one’s sense of justice. Th us, Adams’s argument merits no relief. Adams final argument is that the Commonwealth’s fai lure to provide pertinent evidence violated his right to due proces s. 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 h is Brady claim. First, that Pennsylvania State Police did not follow polic y in regards to retaining the MVR. Second, that the policy as written violate s Brady . Adams did not raise either claim in the lower court. Therefore, w e deem them waived. See Pa.R.A.P. 302(a).J-A13008-15

- 6 -

In Brady , the Court decided that “the suppression by the pr osecution of evidence favorable to an accused upon request vi olates 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 suppre ssed evidence; (2) the evidence, whether exculpatory or impeaching, is hel pful 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 acces s 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. Reas onable diligence on the part of Adams would have provided him access to the MVR. Therefore, since

____________________________________________ 2 A letter referencing the departmental policy for r etention of mobile video/audio recordings has been included in the rep roduced record. It is not in the certified record. This Court has, under cert ain circumstances, overlooked an omission of material from the certifi ed 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 is sue.J-A13008-15

- 7 -

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,” a nd 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 the ir 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 C ommonwealth to provide the Petitioner with NCIC records prior to t rial violates” Brady

. Appellant’s Brief, at 22. That is the sum and subst ance of this claim; it is completely undeveloped. Therefore, we deem the argu ment pertaining to the NCIC records waived. See Commonwealth v. Bavusa , 832 A.2d 1042, 1052 (Pa. 2003) (reiterating that arguments for und eveloped claims are waived). Judgement of sentence affirmed.J-A13008-15

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/4/2015