Com. v. Snyder

• Decision Date: 22 January 2009
• Docket Number: No. 25 MAP 2007.,No. 27 MAP 2007.,No. 28 MAP 2007.,No. 26 MAP 2007.,25 MAP 2007.,26 MAP 2007.,27 MAP 2007.,28 MAP 2007.
• Citation: 963 A.2d 396
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Frederick SNYDER, Appellee Commonwealth of Pennsylvania, Appellant v. Gary Lee Gerber, Jr., Appellee. Commonwealth of Pennsylvania, Appellant v. Group Two Properties, Appellee. Commonwealth of Pennsylvania, Appellant v. Dale Smith, Appellee.
• Court: Pennsylvania Supreme Court

963 A.2d 396

COMMONWEALTH of Pennsylvania, Appellant v. Frederick SNYDER, Appellee Commonwealth of Pennsylvania, Appellant v. Gary Lee Gerber, Jr., Appellee.

Commonwealth of Pennsylvania, Appellant v. Group Two Properties, Appellee.

Commonwealth of Pennsylvania, Appellant v. Dale Smith, Appellee.

No. 25 MAP 2007.

No. 26 MAP 2007.

No. 27 MAP 2007.

No. 28 MAP 2007.

Supreme Court of Pennsylvania.

Argued April 16, 2008.

Decided January 22, 2009.

Christopher D. Carusone, Esq., Richard A. Sheetz, Esq., Amy Zapp, Esq., Thomas W. Corbett, Jr., Esq., Office of the Attorney General, for Commonwealth of Pennsylvania.

Kurt Edward Klapkowski, Esq., Michael David Buchwach, Esq., Susan P. Shinkman, Esq., PA Department of Environmental Protection, Harrisburg, for amicus curiae PA Department of Environmental Protection.

Lawrence J. Hracho, Esq., Hracho & Landis, Reading, for Frederick Snyder.

Emmanuel H. Dimitriou, Esq., Kurt Geishauser, Esq., Dimitriou & Geishauser, P.C., Reading, for Gary Lee Gerber, Jr.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD and McCAFFERY, JJ.

OPINION

Justice TODD.

In this appeal we are asked to determine whether the lower courts erred in finding Appellees' federal due process rights were violated, and thus suppressing evidence against them based on our decision in Commonwealth v. Deans, 530 Pa. 514, 610 A.2d 32 (1992), in light of the United States Supreme Court's subsequent pronouncement in Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004). For the reasons which follow, we reverse.

Beginning in January 2001, Appellee Group Two Properties ("Group Two") owned a dirt lot in Reading, Pennsylvania, which previously had been the property of Reading Industrial Scrap, Inc. ("RISCO"). At the time in question, Appellee Frederick Snyder served as Chief Executive Officer of Group Two and Vice President of Group One Properties ("Group One"). Appellee Gary Lee Gerber, Jr., owned Mount Carbon Industries, who Snyder had hired to clean up the RISCO property. Appellee Dale Smith, a Group One employee, told the Attorney General's office he served as a "go-fer" for Snyder, but was introduced to Gerber as the site manager.

While Gerber initially had been instructed to transport the waste to sites in Morgantown, West Virginia, Blandon, Pennsylvania, and Temple, Pennsylvania, Snyder missed his first payment and, according to Gerber, subsequently ordered the waste buried on the property rather than transported offsite. Gerber claims Smith told him the company had obtained the necessary permits from the Department of Environmental Protection ("DEP").

After conducting an investigation, DEP concluded none of the relevant individuals had permits to dispose of solid waste on the property. See Affidavit of Probable Cause at ¶ 21, R.R. at 81a. DEP referred the matter to the Attorney General's office, alleging illegal burial activity was being conducted. Between August 21 and 26, 2002, the Attorney General's office executed a search warrant on the property and removed, inter alia, 199 drums which had been buried in the ground and certain soil samples which were later tested. DEP tested the samples using the Toxicity Characteristic Leaching Procedure ("TCLP"), authorized for that purpose by the United States Environmental Protection Agency ("EPA") in 40 C.F.R. § 261.24 and implemented into Pennsylvania law by 25 Pa.Code § 261a.1.¹ According to the Commonwealth's affidavit of probable cause, the tests indicated levels of silver and lead were present in the soil samples which exceeded the limits set out in the Solid Waste Management Act, 35 P.S. §§ 6018.101 et seq. ("the Act"). Specifically, the Commonwealth alleged Sample #2981434 had a concentration of 1294 mg/l of lead; Sample #2367364 had a concentration of 12.1 mg/l of silver; Sample # 2994537 had a concentration of 52.3 mg/l of lead and 10 mg/l of silver; Sample # 2994541 had a concentration of 10.7 mg/l of lead; Sample # 2994545 had a concentration of 21.1 mg/l of lead; and Sample # 2994524 had a concentration of 14.2 mg/l of lead. See 40 C.F.R. § 261.24 Table 1 (setting the maximum permissible concentration of both silver and lead at 5 mg/liter).

After conducting TCLP tests, DEP disposed of the samples. The Commonwealth then brought charges against Appellees for violations of the Act and, in pretrial motions, Appellees moved to suppress the test results because the samples had been destroyed, arguing under our decision in Deans, supra, the destruction of the samples violated their federal due process rights and thus required suppression. Reasoning Deans requires "the defendant in a criminal case [be provided] an opportunity to conduct an expert examination of physical evidence that is critical to the issue of guilt," the trial court granted the motion. Trial Ct. Op., 6/21/05, at 4. The court noted remediation of the site had begun by the time charges were filed, so Appellees could not obtain identical evidence; found the TCLP does not produce consistent results; and held though Appellees had access to the site and performed additional tests, those results did not constitute "comparable evidence" under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).² Accordingly, the trial court suppressed the TCLP test results.

The Commonwealth appealed and filed a Dugger statement, certifying the trial court's decision would terminate or substantially handicap the instant prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); see Pa.R.A.P. 311(d). After hearing argument, a unanimous three-judge panel of the Commonwealth Court affirmed in an unpublished opinion. The court concluded the Commonwealth had sought to use the evidence at trial; the trial court was within its discretion in finding the evidence in question was not exceedingly reliable; and, under our decision in Deans, those facts required suppression. The court rejected the Commonwealth's argument that Fisher, supra, which we discuss further below, nonetheless forbade suppression of the results of tests performed on destroyed samples unless the samples were destroyed in bad faith, reasoning that, in Fisher, the evidence which had been destroyed had been subjected to a test which "possess[ed] a high degree of reliability." Commonwealth v. Snyder, Gerber, Group Two Properties and Smith, Nos. 1009, 1010, 1011, and 1012 C.D.2005, unpublished memorandum at 6 (Pa. Cmwlth. filed June 27, 2006). The court also noted that in Fisher the evidence at issue had been destroyed two months before Fisher was arrested, but ten years after the trial at which he had failed to appear. Id. Here, in contrast, the evidence "became unavailable before criminal charges were filed." Id. at 5.

Before both the trial court and the Commonwealth Court, the Commonwealth, in addition to Fisher, relied on Trombetta, supra, to argue no due process violation took place, and so suppression was inappropriate. As we discuss more fully below, in Trombetta, the high Court held the results of DUI breathalyzer tests were admissible in evidence even though the breath samples themselves had been destroyed because the samples were only potentially useful, not materially exculpatory, and had not been destroyed in bad faith. The Commonwealth argued the soil samples were also only potentially useful to the defendants and, under Trombetta, the results of tests performed on such evidence are only subject to suppression if the evidence possessed a clear exculpatory value and the defendant would be unable to obtain comparable evidence by other means. Here, they averred, the trial court found the samples were not destroyed in bad faith and Appellees had access to comparable evidence.

We granted the Commonwealth's Petition for Allowance of Appeal to consider whether the Commonwealth Court erred in affirming the trial court's order suppressing the test results. In particular, we address whether the Commonwealth Court's reliance on our decision in Deans is tenable in light of the United States Supreme Court's subsequent decision in Fisher, supra. We heard argument on April 16, 2008, and now reverse.

When the Commonwealth appeals a suppression order, we consider only the evidence from the defendant's witnesses together with the portion of the Commonwealth's evidence which is uncontroverted. Commonwealth v. Nester, 551 Pa. 157, 161, 709 A.2d 879, 880-81 (1998). Our standard of review is limited to determining whether the suppression court's factual findings are supported by the record, but we exercise de novo review over the suppression court's conclusions of law. Id.

On appeal, the parties reiterate the arguments offered below. The Commonwealth argues that under Fisher and Trombetta the lower courts erred in granting suppression because the soil samples were not destroyed in bad faith. By contrast, Appellees argue Deans requires suppression because the prosecution seeks to use the samples at trial, and the evidence is central to the prosecution's case. They further reiterate their argument that the TCLP test is unreliable.³ See Briefs for Appellees at 13-17.⁴ Appellees also suggest we reject Fisher's inquiry, which focuses on whether the prosecution acted in bad faith.

The instant case implicates "what might loosely be called the area of constitutionally guaranteed access to evidence." Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (quoting U.S. v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). The Due Process Clause of the Fourteenth Amendment requires defendants be provided certain access to certain kinds of evidence prior to trial, so they may "be afforded a meaningful opportunity to present a complete defense." Trombetta, 467 U.S. at 485, 104 S.Ct. 2528.⁵ The guarantee of access to evidence underlies the requirements that the prosecution turn over, if requested, any evidence which is exculpatory and material to guilt or...