COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCl anahan and Senior Judge Bumgardner Argued at Richmond, Virginia

GREGORY L. GAGELONIA, A/K/A JEROME WHITE OPINION BY v. Record No. 2343-06-2 JUDGE ROBERT J. HUMPHREYS JUNE 3, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY James E. Kulp, Judge Designate Anthony G. Spencer for appellant. Richard B. Smith, Special Assist ant Attorney Gene ral (Robert F. McDonnell, Attorney General, on brief), for appellee.
Gregory Gagelonia, a/k/a Jero me White (“White”), appeals his convictions of possession with intent to distribute more than five pounds of marijuana, transporting controlled substances into the Commonwealth, and possession of a fir earm while in possession of a controlled substance with the intent to distribute , in violation of Code §§ 18.2-248.1, 18.2-248.01, and 18.2-308.4, respectively. White argu es that the Commonwealth w ithheld exculpatory evidence, in violation of Brady v. Maryland , 373 U.S. 83 (1963), and asks us to reverse his convictions and order a new trial. For the reasons that follow, we affirm his convictions.
BACKGROUND
A . “ The Delivery” In mid-July of 2005, United States Postal Inspector Evelyn Cross (“Cross”) received information that a suspicious p ackage had arrived in Richmond’s airmail facility from Peoria, Arizona. The package listed the sender’s name as “Karen Russell,” and the recipient’s name and- 2 - address as “Simone Russell, 2807 Hartman Street,” an address in Henrico County. Cross went to the facility and took possession of the pack age, which weighed 23 pounds, 4.4 ounces, and had an expected delivery date of July 16, 2005. Recognizing the characteristics of illegal drug packaging, Cross contacted a Henrico County canine unit to further inspect the package. Based on the canine unit’s results, Cross obtained a federal search warrant for the package. When Cross opened the package, she found a ball of green leafy material wrapped in hardened Styrofoam and cellophane. She again contacte d the Henrico police and, together, they made arrangements to conduct a “controll ed delivery” of the material, which they repackaged using a similar box and the original packing labels. He nrico police also obtained a search warrant for 2807 Hartman Street, the intended de stination of the package. On July 16, 2005, Henrico Police Investigator Shawn Diasperra (“Diasperra”) of the Technical Support Unit arrived in the area of 2807 Hartman Street at 7:00 a.m. and began video surveillance of the home. Investigator Paul Ronson (“Ronson”), the lead investigator in the case, arrived slightly prior to 8:00 a.m., but di d not begin directly watching the house until approximately 10:00 a.m. At some point in the morning, Diasperra obs erved a postal carrier drive by 2807 Hartman Street without stopping. White, who had previously been sitting on the stoop of the house, got into a gray Pontiac and began driving in the same direction as the postal vehicle. After White had been gone “three or four minut es,” he returned to the house. The mail carrier verified that a man had approached him and asked if he had a package for 2807 Hartman Street, but was unable to identify the man. 1 Approximately twenty to thirty mi nutes after White returned, Cross drove past the house in another mail truck without st opping. Cross noticed Wh ite sitting on the stoop,

1 At trial, the mail carrier testified that he did not see the man who had approached him on his route in the courtroom.- 3 - and opined that White’s behavior was consistent with “a person expecting a package.” Cross continued down the street, turned around, parked the vehicle, retrie ved the package, and approached White. White remarked that Cross wa s not “the regular carrier ,” and Cross informed White that the package was addressed to “Ms. Russell.” White nodded, and signed the delivery receipt as “J. Russell.” Cross then returned to her vehicle and retu rned to the post office. White entered the house with the package a few minutes later. Ronson and the “entry team” entered the house at 11:19 a.m. and executed the search warrant. The entry team found th e package unopened in the front room of the house and secured White, who denied any knowledge of the contents of the package. Al so present in the house were Canice Butcher (“Butcher”) and her four-year-old child. White initially identified himself as Gregory Gagelonia (“Gagelonia” ) and said he was a resident of the house, but was unable to provide supporting identification. He then said that he was at the house waiting for someone named “T odd,” and was helping with the mail, “because the female that was at the house was pregnant at the time.” White also said that he had been living on Dove Street in Richmond until he had been shot there, and had since moved to a residential hotel. A search of White reveal ed $859 in cash, a cell phone, and a small Bible containing an address in Texas. A subsequent search of White’s car revealed a .357 revolver, medical documents, and mailing receipts, all be aring Gagelonia’s name. White acknowledged ownership of the gun. Todd Bradley (“Bradley”) lived at 2807 Hartma n Street with Butcher, his girlfriend, at the time of the delivery. There was no reside nt of the house named “Russell.” White, whom Bradley knew as “Tony,” had asked Bradley if he could use his address to receive packages. Bradley agreed, and White had received at least three packages at Bradley’s address during the previous one to two months, but Bradley had no t known what was in the packages. White had- 4 - called Bradley the morning of the delivery and informed him that a package would be arriving that day, but did not tell him what was in that package. Bradley had purchased marijuana from White in the past, which they had smoked together. Ronson and his team contacted Bradley after they executed the search warrant at his house and told him to come home. When he arri ved, Bradley denied knowledge of the contents of the package and told police he only knew that defendant was expecting a package. Bradley told Ronson that he ha d seen White at a hotel in Ch esterfield County about two weeks before the delivery, and br ought Ronson to this hotel. R onson went to Room 314 of the Inn Town Suites in Chesterfield County later that afternoon based on what he had learned from Bradley. There, he encountered Debbie Fletcher (“Fletcher”), the renter of the Pontiac, and Fletcher and the defendant’s child. After speak ing with Fletcher, Ronson searched the hotel room, in which he found $1,000 in cash, numerous shipping documents, and “O sheets,” or an accounting ledger used to represent the inflow-out flow of drugs and money. Police also found a digital scale in the room that contained marijuan a residue. White admitted that he had purchased the scale because he thought it was a “good deal.” White also admitted to Ronson that he had been staying in Room 314 of the Inn Town Su ites, but made no statements regarding the documents found in the room. Postal Inspector Cross later assembled a postal tracking history for 2807 Hartman Street, and discovered that five packages from Texas had been delivered to that address in May-June 2005. The packages weighed 11 pounds 3 ounces, 1 pound 8 ounces, 9 pounds 14 ounces, 35 pounds 7 ounces, and 15 pounds 13 ounces, respectively. An analysis at the Department of Forensic Science revealed that the “green leafy” substance delivered in the package on July 16, 2005 was 190.97 ounces of marijuana. The gun found in the Pontiac was in working condition.- 5 - B. Preliminary Hearing The General District Court of Henrico C ounty (“GDC”) held a preliminary hearing on December 7, 2005 styled Commonwealth of Virginia v. Gregory Leonard Gagelonia . Ronson was the only witness, and over White’s objections, was allowed to testif y to a number of facts that were not within his personal knowledge. 2 Among other things, Ronson testified that White had gotten into his car during the surveillance, drove after the mail carri er’s truck, and had a conversation with the mail carrier. The GDC cer tified charges for possess ion with intent to distribute, transporting a controlled substance into the Commonwealth, and possessing a firearm while attempting to distribute marijuana.
C. Trial

On January 9, 2006, a grand jury returned indi ctments based on the charges certified by the GDC. On April 11, 2006, White appeared for a bench trial in the Circ uit Court of Henrico County (“trial court”). In addition to presenting the evidence out lined above, the Commonwealth also asked the court to qualify Ronson as an expert in illeg al drug distribution, which it did. Ronson then opined that the Styrofoam and cellophane materi als surrounding the marijuana in the box were intended to disguise the scent of the marijuana dur ing shipping. Ronson also testified that in his opinion, the amount of marijuana in the box was inconsistent with personal use and would have a street value of over $61,000.

2 The general district court judge overruled White’s hearsay objections, stating that it would allow the evidence “only for probable cau se purposes.” In passing, we note the plain language of Code § 19.2-183(B) (“At the [preliminary] hearing the judge shall, in the presence of the accused, hear testimony presented for and against the accused in accordance with the rules of evidence applicable to criminal trials in this Commonwealth .” (emphasis added)), and we are unaware of any “probable cause” exception to th e rule barring the admissibility of hearsay evidence.- 6 - Bradley also testified as a witness against White, and acknowledged that he had been charged with conspiracy to distri bute marijuana as a re sult of the delivery on July 16, but stated that the Commonwealth had not made him any prom ises of leniency. During cross-examination, White’s counsel asked him if he expected to ge t any favorable treatment with his charge as a result of his testimony. Bradley responded: “Well, I leave that to my atto rney to advise me. I hope for a fair trial, and my a ttorney is going to do the rest.” 3
White then took the stand on his own behalf an d testified that his real name is Jerome Leslie White, but he had given the police the na me of an old friend, “Greg Gagelonia,” because he had once been fingerprinted while using that alias. He admitted th at he used to live in Texas, but denied knowing anyone in Peoria, Arizona. White also testified that when Cross had delivered the package, he had “signed what she told me to sign. She said Russell, so I signed Russell.” He said he then went inside to tell Butcher about the box, and after she told him that no one named Russell lived there, he had intended to give the box back to the mail carrier, but the police came in before he could act. White also denied having admitted that the firearm was his. In finding White guilty as ch arged, the trial court found, inter alia : The Court accepts the tes timony of the Commonwealth’s witnesses, and the Court reject s the testimony of the defendant. The evidence in the Court’s view is clear. The defendant is using a fake address or an addre ss where he doesn’t live to get marijuana. The Court accepts the testim ony of Mr. Bradley, that the defendant called him on the morning of July the 16th and said, I’m

3 Bradley’s case had been continued three times in GDC, and on one of those occasions, the continuance had been granted by joint mo tion of the defense and Commonwealth. The GDC granted two of these continuances upon motions made immediately after White’s case had been continued. On April 12, 2006, the day after Wh ite’s trial, the Commonwealth moved to nolle prosequi Bradley’s case in the GDC. Bradley’s case had been pending for almost ten months.- 7 - expecting a package. All of his act ions seem to indicate that is precisely what he is doing. . . . . . . [T]he Court did not hear Ms. Cross say to the defendant, I want you to sign this in the name of Ms. Russell. She simply said the package was for Ms. Russell. The defendant takes it upon himself to sign somebody’s name that he doesn’t know whether they live there or not. . . . I think that this is an i ndication that the defendant knew precisely what was in the package. He knew that it was marijuana.
* * * * * * * . . . [D]rugs are a commodity of significant value, unlikely to be abandoned or callously left in an area. So the reasonable inference is the defendant has had packages delivered to him before. . . . The Court believes the evidence [to which] Mr. Bradley testified, and the Court accepts the testimony, that he, the defendant had done this on severa l occasions in the past. . . .
* * * * * * * As to the indictment on transportation . . . [case law holds that] receiving a package in the mail [is] sufficient for a conviction. . . . There was suffici ent evidence to find that the defendant participated as a prin cipal in the second degree in transporting the drugs into the Co mmonwealth with the intent to distribute. The evidence is that this . . . box originated in Arizona, came through the mail, and was to be delivered in Virginia. And the Court finds that is sufficient to show that the defendant was the one who was to receipt for the package [sic], he knew it was coming, that makes him a principal in the second degree. The Court accepts the tes timony of Investigator Ronson when he says that he advised the defendant that there was a firearm in the car, that the defendant admitted that it was his. Now the defendant says, it wasn’t mine, I ne ver said that. The Court does not accept that testimony.- 8 - D. Post-Trial Motions On May 31, 2006, prior to sentencing, the circ uit court entered an order granting the defendant’s motion to substitute counsel. Through his new attorney, White filed a motion for the court to order the Commonwealth to produce the “videotaped survei llance in its entirety and the cell phone seized from the defendant for in camera inspection by the Court to determine whether the Commonwealth is in violation of Brady v. Maryland [, 373 U.S. 83 (1963),] and its progeny.” White filed a second motion on July 25, 2006, th is time moving the court to vacate its judgment of guilt and order a new trial, appoint a special prosecutor on the grounds that the Commonwealth had withheld exculpatory evidence, and order the Henrico police to reveal all of its evidence files in White’s case. The motion re ferred to four categories of evidence that, if known, would resolve any questions of whether the Commonwealth had withheld exculpatory evidence in White’s case. First, White argued that his and Bradley’s cell phones, if produced, might show that White had not in fact called Bradley on the morning of the delivery, and would thus be exculpatory. White next noted that the five-hour videotape of th e house before Inspector Cross made the delivery, if produ ced, might have shown that White in fact did not drive away from 2807 Hartman Street in pursuit of the ma il carrier, and would t hus be exculpatory. Additionally, he argued that the fact that the videotape and cell phones were missing was exculpatory in and of itself, because he would ha ve been entitled to a favorable missing evidence inference at trial had he known a bout the missing evidence. Furthe r, White referenced numerous inconsistencies between Ronson’s testimony at the preliminary hear ing and at trial, as well as alleged falsehoods in his testimony, including his testimony at the preliminary hearing that he had seen White have a conversation with the mail carrier, when in fact he had not seen this happen. Finally, White speculated that Bradley had lied at trial about not expecting leniency in- 9 - exchange for his testimony and the Commonwea lth should have notified him of the supposed agreement between Bradley and the Commonwealth. The trial court heard evidence and argume nts on White’s post-trial motion on July 27, 2006. At this hearing, Ronson testified that he had not placed White’s cell phone in evidence files, but had placed it in White’s personal property at the jail, and had written down the numbers he had seen on the telephone, which included White’s and Bradley’s. However, White introduced a certificate of analysis at the hear ing indicating that Ronson had, in fact, submitted White’s cell phone to the Department of Forensic Science for testing on August 8, 2005, and that Ronson had received a certifi cate of analysis from the Department on October 31, 2005. 4 Also during this hearing, the Commonwealth’s attorney acknowledged that there had been a tape of the first five hours of surveillance before the cont rolled delivery in addition to the five-minute tape showing the delivery itself, but that it had been misplaced and could not be located, a fact he had not realized until a few days earlier. At the conclusion of the hearing, the trial court continued the case until August 17, 2006, and dir ected the Commonwealth’s attorney and investigating officer to meet with White’s co unsel in the meantime and show him certain physical evidence. The parties returned to court on Augus t 17, 2006 for argument and ruling on the Brady motions, as well as for White’s sentencing. No additional evidence was submitted. The trial court denied White’s motion to se t aside the conv iction, stating: [T]he Court finds that the f act that . . . Ronson made several misstatements at the preliminary hearing, and these misstatements were not disclosed to [White]’s counsel, do not give rise to a Brady violation requiring a new trial.

4 In fact, the Sheriff’s deput y at the Henrico County jail pr operty room verified that White’s cell phone had never been placed into White’s personal property at the jail.- 10 - Most of the alleged misstat ements, in the Court’s view, were mainly interpretations of evidence drawn by Detective Ronson. For example, Detectiv e Ronson’s testimony that the defendant had a conversation with th e postal carrier is a reasonable inference from the evidence. The testimony at trial was that when the postal carrier went by, the de fendant got into an automobile and went in the direction of the postal carrier. The postal carrier testified at trial that he had a conversation with someone about a package for the address where the defendant was on the porch, and that the defendant then returned to the porch shortly afte r he had gone in the direction of the postal carrier. The reasonable in ference, in the Court’s view, is that it was the defendant who spoke to the postal carrier. The Court is of the opinion th at at trial when the postal carrier said . . . he didn’t see [White] in the courtroom, even though [he] was in the courtroom, . . . the postal carrier was simply mistaken. . . .
* * * * * * * There were a number of incidents where Detective Ronson used a plural term when describing items of evidence when only one item existed. And again, the Court finds that these are not intentional falsehoods but merely misstatements.
* * * * * * * The Court finds that even if all of these misstatements by Detective Ronson had been brought out at trial, they would not have been sufficient to undermine the confidence in the outcome of the proceeding. . . .
* * * * * * * In the Court’s opinion, the testimony about the missing tape, . . . does not require the C ourt to grant a new trial to the defendant. White subsequently filed a motion asking the tr ial court to reconsid er its ruling, which it denied. We then awar ded White this appeal. 5

5 On September 13, 2006, White filed a motion asking the trial court to reconsider its denial of the motion that is the subject of th e instant appeal. On November 8 and 9, 2006, after- 11 - ANALYSIS White argues on appeal, as he did in the trial court, that he should receive a new trial because the Commonwealth withheld exculpator y evidence in his case, in violation of Brady and its progeny. We disagree. When an exculpatory evidence claim is review ed “[o]n appeal, the burden is on appellant to show that the trial court erred.” Galbraith v. Commonwealth , 18 Va. App. 734, 739, 446 S.E.2d 633, 637 (1994).
In Brady , the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material to either guilt or to punishment[.]” 373 U.S. at 87. Non-disclosure of evidence to the defense violates the Brady rule when the evidence is “(1) e ither directly exculpatory or [has] impeachment value, (2) suppressed by the government, and (3) material.” Lockhart v. Commonwealth , 34 Va. App. 329, 345, 542 S.E.2d 1, 8 (2001). “Stated differently, ‘the question is not whether the defendant woul d more likely than not have rece ived a different verdict with the evidence, but whether in its ab sence he received a fair trial, unde rstood as a trial resulting in a

the 21-day period from August 18, 2006 had expired, White filed new motions to set aside the judgments, requesting a new trial an d for the trial court to recuse itself. In these motions, White alleged the existence of additional, newly discovered exculpatory evidence in his case, including the fact that Fletcher had also faced charges in Chesterfield County that the Commonwealth had nolle prosequied in exchange for her testimony agains t White, and the results of a pending internal affairs investigation against Ronson. The trial court heard oral argument on these motions and denied them. This Court dismisse d White’s petition for ap peal on these motions under Rule 1:1, because more than twenty-one days had passed since the en try of the final order in the case, and the trial court a ccordingly lacked jurisdiction. See Jerome White, a/k/a Gregory L. Gagelonia v. Commonwealth , Record No. 2916-06-2 (Va. Ct. App. June 29, 2007). Although White mentions these events in his brief on the in stant appeal, this Court specifically stated that in granting White’s petition for a ppeal it had not “considered (i) appellant’s motion to reconsider filed on September 13, 2006 . . . or (ii) appellant ’s motions filed on November 8 and 9, 2006[.]” See Gregory L. Gagelonia, a/k/a Jerome White , Record No. 2343-06-2 (June 29, 2007 order granting petition for appeal in part).- 12 - verdict worthy of confidence.’” Workman v. Commonwealth , 272 Va. 633, 645, 636 S.E.2d 368, 374 (2006) (quoting Kyles v. Whitley , 514 U.S. 419, 434 (1995)). “[I]f a Brady violation is established, [an appellate court] do[es] not engage in a harmless error review. Instead, a ‘constitu tional error occurs, and the conviction must be reversed . . . if the evidence is material in the sense that it s suppression undermines confidence in the outcome of the trial.’” Teleguz v. Commonwealth , 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007) (quoting United States v. Bagley , 473 U.S. 667, 678 (1985)) (citations omitted). Exculpatory “information known to the police is information within the Commonwealth’s knowledge and the prosecutor is obliged to disclose regardle ss of the state of his actual knowledge.” Moreno v. Commonwealth , 10 Va. App. 408, 418, 392 S.E.2d 836, 842-43 (1990). However, no Brady violation occurs ‘“if th e evidence in question is available to the defendant from . . . sources [other than the Commonwealth].’” United States v. Wilson , 901 F.2d 378, 380 (4th Cir. 1990) (quoting United States v. Davis , 787 F.2d 1501, 1505 (11th Cir. 1986)). White asserts that four specific areas of excu lpatory evidence exist. These are (1) the disappearance of White and Brad ley’s cell phones from Ronson’s cu stody; (2) the disappearance of the five-hour surveillance tape; (3) the true reason that Bradley’s preliminary hearing was continued and his charges eventually nolle prosequied , and what benefit Bradley expected in exchange for his testimony; and (4) Rons on’s numerous instances of false testimony. 6 Because

6 The Commonwealth initially contends that White’s entire argument is procedurally defaulted because White did not raise these issu es at trial. Yet, White alleged that the Commonwealth had withheld or failed to preser ve exculpatory evidence preceding his trial and, accordingly, requested that the court order a new tr ial. Because we are satisfied that White took the necessary steps to “afford the trial court an opportunity to rule in telligently on the issues presented,” Weidman v. Babcock , 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991), we hold that White adequately preserved this issue for appeal.- 13 - the exculpatory value of the missing videotape and cell phones is similarly speculative, we address those issues together.
A. The Videotape and Cell Phones White first argues that the missing videotap e and cell phones mer it reversal of his convictions and a new trial under Brady because the Commonwealth did not notify him of the fact that they were missing prior to tria l. While White characterizes this as a Brady violation, this allegation is actually contro lled by the holdings of the Supreme Court of the United States in California v. Trombetta , 467 U.S. 479 (1984), and Arizona v. Youngblood , 488 U.S. 51 (1988). White also argues that this evid ence would be exculpatory under Brady because of a missing evidence inference favorable to hi m, also known as “spoliation.”
1. Trombetta and Youngblood Brady and its progeny pertain to exculpator y evidence still in the government’s possession, of which the exculpatory value is known. United States v. Femia , 9 F.3d 990, 993 (1st Cir. 1990). In contra st, and as is the case here, Trombetta and Youngblood pertain to evidence that is no longer in the government’s possession, whose exculpator y value, if any, is unknown. Id.
In Trombetta , the seminal case involving the prosecuti on’s failure to preserve evidence, the United States Supreme Court held that “the government violates due process if the evidence possessed ‘exculpatory value th at was apparent before the evidence was destroyed, and the evidence is of such a nature that the defendant would be unable to obtain comparable evidence by any other reasonable means.’” Park v. Commonwealth , 32 Va. App. 407, 420, 528 S.E.2d 172, 178 (2000) (quoting Trombetta , 467 U.S. at 489). In Youngblood , the Court added a third requirement, holding that if “a criminal defendant can[not] show bad faith on the part of the police, failure to preserve potenti ally useful evidence does not cons titute a denial of due process- 14 - of law.” 488 U.S. at 58. Thus, a defendant seek ing a new trial on the basis of missing evidence formerly in the Commonwealth’s possession mu st show that (1) the evidence possessed an apparent exculpatory value, (2) the defendant co uld not obtain comparable evidence from other sources, and (3) the Commonwealth, in failing to preserve the evidence, acted in bad faith. Furthermore, “[t]he presence or absence of bad faith by the po lice for purposes of the Due Process Clause must necessarily turn on the po lice’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 56 n.*. White has not met his burden in showing that either the police or the Commonwealth acted in bad faith in losing th e tape and cell phone. Although Rons on testified incorrectly that he had placed White’s cell phone in the personal prope rty room of the county jail, this testimony came months after the fact, and th e trial court apparently inferred that he was honestly mistaken rather than deliberately lying. Nothing in the re cord indicates that the police had knowledge that these pieces of evidence were exculpatory, nor has White proffered the nature of any exculpatory information either the videotape or the cell phon e would show. Instead, White simply expresses the hope that they might either show that he did not call Bradley or did not drive off in pursuit of the mail carrier. Conversely, by all accounts, Ronson and Diasperra both thought that the videotape and cell phones would be inculpatory , as they both provided evidence from which the fact finder could infer that White was expecting a package to arrive in the mail. Thus, with regard to both the videotape a nd the cell phone, White has not shown that either piece of evidence “possessed exculpatory value” apparent prior to the misplacemen t of the evidence. Park , 32 Va. App. at 420, 528 S.E.2d at 178 (quoting Trombetta , 467 U.S. at 489) (internal quotations omitted). Moreover, with regard to hi s cell phone, White could have certainly obtained comparable evidence from other sources. See Stockton v. Murray , 41 F.3d 920, 927 (4th Cir. 1994) (“ Brady- 15 - does not compel the disclosure of evidence av ailable to the defendant from other sources, including diligent investigation by the defense.”). Because “[t]hi s call also must have appeared in [White’s] own phone records[,]” United States v. Leibowitz , 857 F.2d 373, 379 (7th Cir. 1998), White has not met his burden on this requirement either.
2. Spoliation White also argues that the fact that the vi deotape and cell phones we re missing is, in and of itself, a Brady violation, because had he known that the videotape and cell phones were missing at trial, he would have been entitled to an exculpatory missing evidence inference. Again, regarding the cell phones, “ Brady does not compel the disclosure of evidence available to the defendant from other sources, including diligent investigation by the defense.” Stockton , 41 F.3d at 927. Regarding the missing videotape, White relies on Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program , 40 Va. App. 565, 580 S.E.2d 467 (2003), in which we discussed the concept of spoliation, or a missing ev idence inference. Specifically, we stated that “Virginia law recognizes a spoliation or missing evidence inference, which provides that ‘where one party has within his control ma terial evidence and does not offer it, there is an inference that the evidence, if it had been offered, would have been unfavorable to that party.’” Id. at 580-81, 580 S.E.2d at 475 (quoting Charles E. Friend, The Law of Evidence in Virginia , § 10-17, at 338 (5th ed. 1999)). “A spoliation inference may be a pplied in an existing action if, at the time the evidence was lost or destroyed, ‘a reasonable pe rson in the defendant’s position should have foreseen that the evidence was material to a potential civil action.’” Id. at 581, 580 S.E.2d at 475 (quoting Boyd v. Travelers Ins. Co. , 652 N.E.2d 267, 270-71 (Ill. 1995)) (emphasis added).- 16 - However, our Supreme Court has held that “s poliation” does not apply in criminal cases.
In Russell v. Commonwealth , 216 Va. 833, 836-37, 223 S.E.2d 877, 879 (1976), the Court stated: We do not believe a missing-witness presumption instruction has any place in a criminal case. If its use is permitted, both the prosecution and the defense, ag ainst the risk of having the instruction granted at the request of the opposing party, would be required to call all witnesses po ssibly having some knowledge of the case, even though their testimony might be merely cumulative. Thus, it is clear that White does not meet his burden of pr oving that this evidence was exculpatory merely by demonstrating its absenc e and, thus, the Commonwealth’s failure to disclose this evidence did not constitute a Brady violation

. B. Todd Bradley As noted above, Bradley, the resident of th e house to which Inspector Cross delivered the package, faced a conspiracy to distribute mariju ana charge, and testifie d against White at his trial. He further testified that the Commonweal th had made him no promises of leniency in exchange for his testimony. He also testified th at his preliminary heari ng was not continued so that it would take place after White’s trial, but because he was out of town. When White’s attorney asked Bradley about whether he expected favorable treatment as a result of testifying, Bradley responded: “Well, I leave th at to my attorney to advise me. I hope for a fair trial, and my attorney is going to do the rest.” White argues that “[t]he prosecutor in this ca se had a duty to disclose any false testimony by Todd Bradley as to how often and why his prel iminary hearing was continued and whether he had any reason to hope that his testifying agains t the appellant would benefit his case.” The Commonwealth agrees that such a duty exists , but argues that White produced no evidence to show that Bradley lied. White’s counsel res ponded at oral argument that “we all know how- 17 - these things work” and suggested that Bradley s imply must have had an undisclosed agreement with the Commonwealth. We ag ree with the Commonwealth that such unsupported speculation is insufficient to satisfy White’s burden to establ ish the existence of either perjury by Bradley or an undisclosed agreement for leniency. The record simply does not support White’s cl aim that Bradley lied about his motivations for testifying. Bradley never denied that he was hoping for favorable treatment from the Commonwealth in exchange for his testimony, and nothing in the record contradicts Bradley’s claim that his case was continued because he was out of town. Furthermore, White’s attorney cross-examined Bradley about his pending charge at White’s trial. Thus, th e trial court sitting as the fact finder was aware that Bradley faced a criminal charge , and could infer that Bradley hoped for favorable treatment from the Comm onwealth in exchange for his testimony. Therefore, even if we were to accept White’s bare supposition that Bradley lied about his expectations from his testimony, we cannot say that the suppression of this evidence would “‘undermine[] confidence in the outcome of the trial.’” Teleguz , 273 Va. at 488, 643 S.E.2d at 727 (quoting Bagley , 473 U.S. at 678). Thus, we reject White’s argument in this regard as well.
C. Ronson’s Testimony Lastly, White argues that Investigator Ronson’ s numerous “instances of false testimony” are exculpatory. However, White has not met his burden in showing that Ronson testified falsely. “[C]onclusory allegations of pe rjury do not prove that [a witn ess’] testimony [is] false.” United States v. Coronel-Quintana , 752 F.2d 1284, 1290 (8th Cir. 1985). Even “[c]ontradictions and changes in a witness’s testimony alone do no t constitute perjury and do not create an inference, let alone prove, th at the prosecution knowingly pr esented perjured testimony.” Tapia v. Tansy , 926 F.2d 1554, 1563 (10th Cir. 1991).- 18 - Although there clearly were in consistencies in Ronson’s te stimony, the trial court found that many of these inconsistencies were due to his testimony at White’s preliminary hearing, in which he testified to hearsay evidence not within his person al knowledge offered “only for probable cause purposes.” Moreover , White’s attorney at trial had a transcript of the preliminary hearing proceedings, and thus knew or should have known about any inconsistencies between Ronson’s testimony at the preliminary heari ng and trial. As such, they were not “ suppressed by the government,” Lockhart , 34 Va. App. at 345, 542 S.E.2d at 8, and, thus White fails to meet the requirements for a Brady violation in this area as well.
CONCLUSION For the reasons stated herein, we hold th at none of the evidence referenced by White meets the requirements of Brady , Trombetta , or Youngblood . Thus, we hold that the Commonwealth did not deprive White of due process either by withholding or failing to preserve exculpatory evidence. Accordingl y, we affirm White’s convictions. Affirmed.