Com. v. Benvenisti-Zarom, L.

J-S61033-19

2020 PA Super 34

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LUNA BENVENISTI-ZAROM :

:

Appellant : No. 342 EDA 2019

Appeal from the Judgment of Sentence Entered December 20, 2018

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0004933-2017

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 11, 2020

Appellant Luna Benvenisti-Zarom appeals the judgment of sentence

entered by the Court of Common Pleas of Montgomery County after Appellant

was convicted of aggravated assault by vehicle while driving under the

influence (DUI), aggravated assault by vehicle, DUI (general impairment),

DUI (high rate of alcohol), recklessly endangering another person (REAP), and

several summary offenses. After careful review, we affirm.

The trial court aptly summarized the factual background and procedural

history of the case as follows:

On February 21, 2017, at approximately 11:22 p.m., at mile

marker 20.9 of the northbound Northeast Extension (Interstate

476), a Honda Accord driven by [Appellant] collided with a

Volkswagen Passat being driven by Kelley Tansley (“Victim”).

Pennsylvania State Trooper Gregory Neely arrived at the accident

scene shortly afterwards and observed [Appellant] lying on the

ground by the driver’s door of the Honda Accord. Trooper Neely’s

____________________________________________

* Former Justice specially assigned to the Superior Court.

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assessment of the scene led him to conclude the accident was the

result of a head[-]on collision caused by [Appellant’s] vehicle

traveling southbound in the far left northbound lane of the

Northeast Extension.

[Appellant] was grabbing her stomach and yelled at Trooper

Neely to “go away.” The trooper believed [Appellant] was injured.

EMS workers subsequently moved [Appellant] into an ambulance

which had arrived at the scene several minutes later. Trooper

Neely spoke with [Appellant] while she was seated in the

ambulance and noted the strong odor of alcohol on her breath.

Following a time period of approximately thirty (30) to forty-

five (45) minutes, the ambulance transported [Appellant] to a

helicopter which had landed on the Northeast Extension. The

helicopter airlifted [Appellant] to Thomas Jefferson University

Hospital (“Jefferson Hospital”) in Philadelphia, PA for treatment of

injuries she sustained in the accident. During the time period in

which [Appellant] was seated in the ambulance, Trooper Neely did

not ask [Appellant] to take a blood test because she was being

treated by medical personnel. At the accident scene, authorities

towed [Appellant’s] vehicle after she was airlifted to Jefferson

Hospital. Pennsylvania State Trooper Richard Hawkins

subsequently received instructions to see [Appellant] at Jefferson

Hospital.

Upon [Appellant’s] arrival at Jefferson Hospital, an

examination revealed she required surgery for her injuries. At

1:20 a.m. on February 22, 2017, medical personnel administered

100 mcg of Fentanyl to [Appellant] to relieve her pain. At 1:55

a.m., Trooper Hawkins arrived at Jefferson Hospital and was able

to speak with [Appellant] in one of the medical rooms. The

trooper asked [Appellant] questions regarding how the accident

occurred. In her responses to the trooper’s questions, [Appellant]

indicated that she was at a friend’s house earlier in the evening

where she had consumed three glasses of wine. [Appellant] did

not recall how the crash occurred. Trooper Hawkins suspected

[Appellant] had driven under the influence of alcohol and advised

her that she was under suspicion for DUI. The trooper

subsequently read to [Appellant] from a DL-26B form. [Appellant]

consented to a blood draw and although she was unable to sign

the DL-26B form due to multiple “tubes” in her hand, [Appellant]

provided oral consent. Trooper Hawkins observed the blood draw,

which occurred at 2:02 a.m. and later transported the blood

specimen to Trooper Neely. Test results performed on

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[Appellant’s] blood indicated a [blood alcohol content (BAC)] of

.127%. On April 19, 2017, authorities formally charged [Appellant

with the aforementioned offenses].

Trial Court Opinion (“T.C.O.”), 6/6/19, at 1-3.

On December 17, 2017, Appellant filed a motion for discovery in which

she sought the “black box” from her vehicle that would contain information

about her direction of travel at the time of the accident. Initially, the

Commonwealth did not investigate Appellant’s car, which was towed from the

accident scene. On February 11, 2018, the prosecutor responded in an email

that the Commonwealth did not have a black box in its possession. In a

subsequent hearing, the prosecutor asserted that he did not have possession

of a black box from Appellant’s vehicle, had never sought black box data

before, and had not researched how to obtain such data.

Thereafter, the defense submitted an accident reconstruction report, in

which its expert concluded that Appellant was not traveling southbound in the

northbound lane of the Northeast Extension when the accident occurred. The

report criticized the prosecution for failing to obtain black box data from

Appellant’s vehicle.

In response, the prosecution sought the assistance of Pennsylvania

State Police (PSP) expert Sergeant Charles Burkhardt, who concluded that

finding the black box from Appellant’s vehicle was necessary to rebut the

claims in the defense’s accident reconstruction report. After locating the black

box from Appellant’s vehicle in a junkyard in Carbon County, Sergeant

Burkhardt obtained a warrant to obtain the black box, analyzed the data, and

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produced a report in which he concluded that Appellant’s vehicle was traveling

southbound in the far left northbound lane of the Northeast Extension when

the accident occurred. Sergeant Burkhardt entered the black box into

evidence, provided the defense a copy of the data along with his expert report,

and provided Appellant an opportunity to inspect the black box. Thereafter,

Appellant did not file a request to inspect the black box.

On August 14, 2018, Appellant filed a motion to suppress (1) her blood

test results, (2) statements she made to the police and (3) the black box

seized from her vehicle. On the same day, Appellant also filed a motion to

dismiss the charges, as she claimed, inter alia, the Commonwealth violated

discovery rules by misleading the defense regarding the existence of the black

box. Appellant claimed that she could not afford to commission an expert to

perform a new accident reconstruction report using the black box data. On

August 17, 2018, the Commonwealth filed a Motion in Limine to preclude

portions of the report of defense expert Dr. Hedva Shamir.

On August 31, 2018, the trial court denied Appellant’s suppression

motion and her motion to dismiss the charges. However, to avoid unfair

prejudice, the trial court permitted Appellant to obtain a new accident

reconstruction report and restricted the Commonwealth from presenting its

accident reconstruction report or its expert testimony based on the black box

data in its case in chief. If the defense’s expert referenced the black box data

on direct examination, the Commonwealth would be permitted to offer its

corresponding accident reconstruction evidence in rebuttal.

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In addition, the trial court granted the Commonwealth’s motion in part,

finding inter alia, that Dr. Shamir was prohibited from testifying as to the

“validity of Appellant’s consents.” Order, 8/31/18, at 1. However, the trial

court also indicated that the Commonwealth’s motion was denied in part as

Dr. Shamir would be permitted to testify as to the medical conditions of

Appellant and the victim as a result of the automobile accident. At trial,

Appellant chose not to present Dr. Shamir as a witness and did not attempt

to offer her accident reconstruction report into evidence.

On September 26, 2018, the jury found Appellant guilty of aggravated

assault by vehicle while DUI, aggravated assault by vehicle, REAP, and two

counts of DUI, while the trial court found Appellant guilty of all the summary

offenses. After her sentence was imposed, Appellant filed a timely appeal and

complied with the trial court’s direction to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises seven issues for our review on appeal:

1. Whether the Trial Court erred in denying Appellant’s pretrial

motion to suppress the results of Appellant’s blood alcohol test

where there was no warrant and a lack of consent?

2. Whether the Trial Court erred in denying Appellant’s pretrial

motion to suppress where the blood draw occurred after the

two-hour window required under 75 Pa.C.S.A. § 3802(b) and

was done without good cause shown for violation of that rule?

3. Whether the Trial Court erred in excluding the proffered

testimony of Appellant’s expert witness Hedva Shamir, M.D.,

on the question of consent?

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4. Whether the Trial Court erred in allowing the Commonwealth

the opportunity to present expert testimony regarding

consent?

5. Whether there was prosecutorial misconduct so egregious that

it prevented Appellant from having a full and fair opportunity

to respond on the issues of fault and causation where the

Commonwealth failed to timely recover and produce to the

defense the black box from Appellant’s vehicle?

6. Whether the Trial Court erred in permitting the Commonwealth

to show to the jury the accident/scene reconstruction video

created by the Pennsylvania State Police which was highly

prejudicial as it was not probative of the details of the accident?

7. Whether the Trial Court erred in permitting the Commonwealth

to present the opinion of Trooper Neely as to how the accident

occurred when such testimony was tantamount to an expert

opinion without Trooper Neely having been qualified as such

and that opinion was critical to the issues of causation and fault

in the case?

Appellant’s Brief, at 6-7 (reordered for ease of review).

Appellant’s first two arguments challenge the trial court’s decision to

deny her motion to suppress her blood alcohol content (BAC) test results.

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. Because the Commonwealth prevailed before the

suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as

a whole. Where the suppression court's factual findings are

supported by the record, we are bound by these findings and may

reverse only if the court's legal conclusions are erroneous. Where,

as here, the appeal of the determination of the suppression court

turns on allegations of legal error, the suppression court's legal

conclusions are not binding on an appellate court, whose duty it

is to determine if the suppression court properly applied the law

to the facts. Thus, the conclusions of law of the courts below are

subject to our plenary review.

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Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations

and quotation marks omitted). In addition, “our scope of review from a

suppression ruling is limited to the evidentiary record that was created at the

suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670

(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).

Specifically, Appellant claims she was incapable of providing voluntary

consent to the warrantless blood test as she was under the influence of

narcotic pain medication that was given to her intravenously by hospital

personnel to manage her pain and prepare her for surgery. Appellant also

asserts that her BAC test results should have been suppressed as officers did

not have good cause to obtain the warrantless blood test outside the two-hour

window after the accident in violation of 75 Pa.C.S.A. § 3802(g).

We are guided by the following well-established principles:

The Fourth Amendment to the Constitution of the United States

and Article I, § 8 of the Constitution of the Commonwealth of

Pennsylvania both prohibit unreasonable searches and seizures.

The administration of a blood test, performed by an agent of, or

at the direction of the government, constitutes a search under

both the United States and Pennsylvania Constitutions. If an

officer performs a blood-draw search without a warrant, it is

unreasonable and therefore constitutionally impermissible, unless

an established exception applies. Exceptions to the warrant

requirement include the consent exception. For the consent

exception to apply, the consent must be voluntary.

Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa.Super. 2018) (quoting

Commonwealth v. Evans, 153 A.3d 323, 328 (Pa.Super. 2016) (quotation

marks omitted)).

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In determining whether Appellant provided voluntary consent to the

warrantless blood test, we apply the following precedent:

In determining the validity of a given consent, the Commonwealth

bears the burden of establishing that a consent is the product of

an essentially free and unconstrained choice—not the result of

duress or coercion, express or implied, or a will overborne—under

the totality of the circumstances. The standard for measuring the

scope of a person's consent is based on an objective evaluation of

what a reasonable person would have understood by the exchange

between the officer and the person who gave the consent. Such

evaluation includes an objective examination of the maturity,

sophistication and mental or emotional state of the defendant.

Gauging the scope of a defendant's consent is an inherent and

necessary part of the process of determining, on the totality of the

circumstances presented, whether the consent is objectively valid,

or instead the product of coercion, deceit, or misrepresentation.

While there is no hard and fast list of factors evincing

voluntariness, some considerations include: 1) the defendant's

custodial status; 2) the use of duress or coercive tactics by law

enforcement personnel; 3) the defendant's knowledge of his right

to refuse to consent; 4) the defendant's education and

intelligence; 5) the defendant's belief that no incriminating

evidence will be found; and 6) the extent and level of the

defendant's cooperation with the law enforcement personnel.

Commonwealth v. Krenzel, 209 A.3d 1024, 1028-29 (Pa.Super. 2019)

(quoting Commonwealth v. Venable, 200 A.3d 490, 497 (Pa.Super. 2018)).

Appellant argues that she could not have given voluntary consent to the

trooper’s request for blood testing in light of her mental and emotional state

as she was severely injured, was taken to the hospital unwillingly by

helicopter, and under the influence of a narcotic given by hospital personnel.

While we acknowledge Appellant had been administered a dose of

Fentanyl to relieve her pain thirty-five minutes before speaking with Trooper

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Hawkins, Appellant fails to address Trooper Hawkins’ testimony that Appellant

was alert and able to have an intelligent conversation at the time he

interviewed her. Trooper Hawkins, who had received training in identifying

impaired drivers, reported that Appellant did not appear to be under the

influence of a controlled substance and did not display an inability to answer

his questions. During this interview, Appellant indicated on the night of the

accident, she had consumed three glasses of wine at a friend’s house but could

not recall how the accident occurred. Based on this statement, Trooper

Hawkins suspected Appellant was driving under the influence of alcohol when

the accident occurred. Therefore, Trooper Hawkins requested that Appellant

submit to blood testing and read her the relevant DL-26 form.

At trial, Trooper Hawkins asserted he had no reservations about

Appellant’s ability to understand the information he presented to her in the

DL-26 form. Moreover, just minutes before speaking to Trooper Hawkins,

Appellant gave verbal consent for surgery and treatment to hospital

personnel, who also did not express any reservation about Appellant’s ability

to give consent. As the record supports the trial court’s finding that Appellant

rendered voluntary consent to Trooper Hawkins’s request for a blood draw,

we conclude that the trial court did not err in refusing to suppress Appellant’s

BAC test results on this basis.

We also reject Appellant’s claim that her BAC test results should have

been suppressed as her blood was tested more than two hours after her

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accident. Appellant was convicted of DUI under Section 3802(a)(1) and

3802(b) of the Vehicle Code which provide:

(a) General impairment.—

(1) An individual may not drive, operate or be in actual

physical control of the movement of a vehicle after imbibing

a sufficient amount of alcohol such that the individual is

rendered incapable of safely driving, operating or being in

actual physical control of the movement of the vehicle.

***

(b) High rate of alcohol.--An individual may not drive, operate or

be in actual physical control of the movement of a vehicle after

imbibing a sufficient amount of alcohol such that the alcohol

concentration in the individual's blood or breath is at least 0.10%

but less than 0.16% within two hours after the individual has

driven, operated or been in actual physical control of the

movement of the vehicle.

75 Pa.C.S.A. § 3802.

The requirement in Section 3802(b) that a defendant’s blood must be

taken within two hours after the defendant has been in control of a vehicle is

subject to a “good cause” exception:

Exception to two-hour rule.--Notwithstanding the provisions of

subsection (a), (b), (c), (e) or (f), where alcohol or controlled

substance concentration in an individual's blood or breath is an

element of the offense, evidence of such alcohol or controlled

substance concentration more than two hours after the individual

has driven, operated or been in actual physical control of the

movement of the vehicle is sufficient to establish that element of

the offense under the following circumstances:

(1) where the Commonwealth shows good cause explaining

why the chemical test sample could not be obtained within

two hours; and

(2) where the Commonwealth establishes that the individual

did not imbibe any alcohol or utilize a controlled substance

between the time the individual was arrested and the time

the sample was obtained.

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75 Pa.C.S.A. § 3802(g).

In this case, we agree with the trial court that the prosecution presented

“good cause” to explain why officers failed to test Appellant’s blood within two

hours of her accident. When Trooper Neely arrived at the accident scene, he

did not proceed to interview Appellant who appeared to be severely injured.

Appellant was lying on the ground beside her vehicle, clutching her stomach

in pain, and screaming at Trooper Neely to “go away.” Notes of Testimony

(“N.T.”), Pre-trial motion hearing, 8/27/18, at 69.

Emergency personnel arrived on the scene at nearly the same time as

Trooper Neely and began to treat Appellant immediately as she was lying on

the ground. Thereafter, emergency personnel transported Appellant to the

back of an ambulance and continued to treat her while they awaited the arrival

of a helicopter to airlift Appellant to a local hospital. Approximately thirty to

forty-five minutes later, a helicopter landed on the Northeast Extension and

transported Appellant to Jefferson Hospital.

When Trooper Neely was asked why he did not ask Appellant to consent

to blood testing during this thirty to forty-five minute period while Appellant

was being treated by medical personnel, Trooper Neely testified that “[i]n my

career, I’ve never asked someone to submit to a chemical test in the back of

an ambulance when they’re being treated for injuries, so I didn’t – that’s not

the time to do that.” Id. at 93. In light of the circumstances in this case, we

agree with the trial court’s finding that Trooper Neely had good cause to

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conclude that “there was too much uncertainty surrounding [Appellant’s]

medical condition to order a blood test” at the accident scene. T.C.O. at 23.

In addition, the parties agree that Appellant did not consume any alcohol

between the time of the accident and her blood testing two hours and forty

minutes later. While Appellant was administered Fentanyl between this

period, Appellant does not contend that testing for alcohol in her blood would

in any way be affected by the addition of the intravenous narcotic into her

bloodstream.

Moreover, Appellant’s argument based on the “two hour rule” does not

entitle her to suppression of her BAC test results in her prosecution under

Section 3802(a)(1) (DUI: general impairment – incapable of safely driving),

as this subsection does not include language discussing the “two hour”

requirement. As such, our courts have held that “evidence of blood tests

taken more than two hours after driving is admissible under subsection (a)(1)

without resort to section 3802(g).” Commonwealth v. Eichler, 133 A.3d

775, 787 (Pa.Super. 2016) (citing Commonwealth v. Segida, 604 Pa. 103,

985 A.2d 871, 879 (2009)). Accordingly, we conclude that the trial court did

not err in refusing to suppress Appellant’s BAC test results.

In her third claim, Appellant asserts the trial court abused its discretion

in “excluding the proffered testimony of Appellant’s expert witness, Hedva

Shamir, M.D. on the question of consent.” Appellant’s Brief, at 6. Similarly,

in her fourth claim, Appellant argues that the trial court should not have

allowed the Commonwealth to present expert testimony regarding consent.

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Our standard of review is as follows:

The admission of evidence is committed to the sound discretion of

the trial court, and a trial court’s ruling regarding the admission

of evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Cosby, ___A.3d___, 3314 EDA 2018, at *16 (Pa.Super.

Dec. 10, 2019) (quoting Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.

Super. 2010) (citations and quotation marks omitted)).

It is well-established that “[e]xpert testimony is generally admissible if:

the witness has a specialized knowledge beyond that possessed by the

average layperson; such knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue; and the expert's methodology is

generally accepted in the relevant field.” Commonwealth v. Maconeghy,

642 Pa. 770, 778, 171 A.3d 707, 712 (2017) (citing Pa.R.E. 702).

In this case, the Commonwealth filed a “Motion in Limine to Preclude

Portions of Defendant’s Medical Expert Report, asking the trial court to limit

the scope of defense expert Dr. Shamir’s testimony on various topics. Dr.

Shamir is an emergency medicine board-certified physician who submitted an

expert report on several issues in this case, including her opinions on the

cause and manner of the accident (accident reconstruction), the rate of speed

the vehicles were traveling before the accident, as well as the validity of

Appellant’s consent to blood testing after being given an intravenous narcotic

at the hospital to relieve her pain.

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The trial court granted the Commonwealth’s motion in part, finding inter

alia, that Dr. Shamir was prohibited from testifying as to the “validity of

Appellant’s consents.” Order, 8/31/18, at 1. However, the trial court also

indicated that the Commonwealth’s motion was denied in part as Dr. Shamir

was permitted to testify as to the medical conditions of Appellant and the

victim as a result of the automobile accident. Thereafter, Appellant chose not

to present Dr. Shamir as a witness at trial.

While Appellant asserts that the trial court erred in restricting Dr. Shamir

from testifying at trial on the issue of the validity of Appellant’s consent to

blood testing, we fail to see how this testimony would constitute relevant

evidence at trial. The trial court previously rejected Appellant’s argument that

her consent to blood testing was invalid when it denied her motion to suppress

the BAC testing results. As testimony concerning Appellant’s consent to blood

testing would not have been relevant to prove an element of the offenses

charged in this case or a valid defense at trial, we agree with the trial court’s

assessment that Dr. Shamir’s testimony on the issue of consent would only

“cause confusion and prejudice.” T.C.O. at 7. Accordingly, the trial court did

not abuse its discretion in excluding Dr. Shamir’s testimony on this issue.

Appellant also argues that it was unfair for the trial court to allow the

prosecution’s expert witness, Dr. David Rittenhouse, to testify to Appellant’s

ability to consent to blood testing. Dr. Rittenhouse was the emergency

physician on duty at Jefferson Hospital at the time Appellant was brought for

treatment after the accident in question.

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However, Appellant fails to recognize that she did not object to the scope

of Dr. Rittenhouse’s testimony during trial. “Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a). As Appellant failed to preserve this issue review by making a proper

objection in the lower court, we find her argument to be waived.

Fifth, Appellant accuses the Commonwealth of prosecutorial misconduct

in failing to timely recover and produce for the defense the “black box” from

Appellant’s vehicle. Appellant claims she did not have sufficient opportunity

to have her expert evaluate this evidence and was denied a fair trial.

Our Supreme Court “has limited the prosecution's disclosure duty

such that it does not provide a general right of discovery to

defendants.” Commonwealth v. Cam Ly, 602 Pa. 268, 293, 980

A.2d 61, 75 (2009). “Under Brady [v. Maryland, 373 U.S. 83

(1963)], the prosecution's failure to divulge exculpatory evidence

is a violation of a defendant's Fourteenth Amendment due process

rights.” Id. “[T]he prosecutor is not required to deliver his entire

file to defense counsel, but only to disclose evidence favorable to

the accused that, if suppressed, would deprive the defendant of a

fair trial.” Id. (quoting United States v. Bagley, 473 U.S. 667,

675, 105 S.Ct. 3375, 87 L.3d.2d 481(1985)). “[T]o establish a

Brady violation, a defendant must demonstrate that: (1) the

evidence was suppressed by the Commonwealth, either willfully

or inadvertently; (2) the evidence was favorable to the defendant;

and (3) the evidence was material, in that its omission resulted in

prejudice to the defendant.” Commonwealth v. Haskins, 60

A.3d 538, 547 (Pa.Super. 2012) (citing Commonwealth v.

Dennis, 609 Pa. 442, 17 A.3d 297, 308 (2011)). “The mere

possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the

trial does not establish materiality in the constitutional sense.” Id.

(citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014,

1019 (2003)) (citation omitted).

Nevertheless, “[t]he withheld evidence must have been in

the exclusive control of the prosecution at the time of trial.”

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Haskins, supra. “Brady is not violated when the appellant knew

or, with reasonable diligence, could have uncovered the evidence

in question, or when the evidence was available to the defense

from other sources.” Commonwealth v. Roney, 622 Pa. 1, 23,

79 A.3d 595, 608 (2013) (citing Commonwealth v. Smith, 609

Pa. 605, 17 A.3d 873, 902–03 (2011)) (citation omitted)

(emphasis added).

Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa.Super. 2015).

In this case, the Commonwealth did not suppress the black box evidence

sought by Appellant. Instead, the prosecutor indicated to the defense that he

did not have possession of the black box evidence as the prosecution initially

had not planned on presenting expert testimony on this topic. Appellant does

not explain why her expert could not have independently uncovered the black

box data or why she believes that the Commonwealth was in exclusive control

of this evidence, when Appellant’s vehicle had been towed to a junkyard

owned by a third party. The prosecution reconsidered its strategy and

subsequently obtained the black box data after Appellant’s expert report

criticized the prosecution for failing to retrieve this evidence.

In addition, Appellant has not established that the black box data was

exculpatory evidence as the prosecution claims that the black box data

confirms its theory that Appellant was driving southbound on the northbound

lane of the Northeast Extension when the accident occurred.

Moreover, Appellant has not shown that the black box data was material

such that she was prejudiced by its omission. To establish prejudice, Appellant

was required to demonstrate a “reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

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different.” Commonwealth v. Treiber, 632 Pa. 449, 493, 121 A.3d 435,

461 (2015). The prosecution presented ample evidence of Appellant’s

responsibility for the crash, as the victim testified that she could not avoid

Appellant’s car which came “right at” her while she was driving in her own

lane. N.T., 9/24/18, at 99. In addition, Trooper Neely testified that based on

his observation of the placement of the cars and accident debris, he could

infer that Appellant was traveling the wrong direction on the highway when

the crash occurred. Appellant could not remember how the accident occurred.

Accordingly, the trial court did not err in denying Appellant’s Brady claim.

In her sixth and seventh arguments, Appellant argues that the trial court

erred in allowing the Commonwealth to present a video created by the PSP to

reconstruct how the accident occurred and in permitting Trooper Neely to offer

an expert opinion as to the cause and manner of the accident in question when

the officer had not been qualified as an expert.

Both claims are waived as Appellant did not properly raise these

arguments in the lower court. See Pa.R.A.P. 302(a), supra. While Appellant

objected to the admission of the Commonwealth’s reconstruction video in her

suppression motion, defense counsel admitted twice at the pre-trial motion

hearing that the defense would not pursue a challenge to the admission of the

video and did not object to the video being shown to the jury. N.T., 8/27/18,

at 15-16, 328. Similarly, Appellant did not object to Trooper Neely’s testimony

that, based on his observations of the placement of the vehicles and debris,

he believed Appellant was driving southbound in the northbound lane of traffic

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on the highway when the accident occurred. Accordingly, we decline to review

the merits of these arguments.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/20

.

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