Com. v. Widgins, L. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LIONEL WIDGINS, : No. 159 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 18, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0000023-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016
Lionel Widgins appeals from the judgment of sentence entered by the
Court of Common Pleas of Philadelphia County on December 18, 2014, after
a jury found him guilty of possession with intent to deliver a controlled
substance (“PWID”).1 Following his conviction, the trial court sentenced
appellant to 3 to 10 years’ incarceration. We affirm.
The trial court set forth the following factual history:
At approximately 7:40 [p.m.] on
December [3], 2013, plainclothes police officers,
responding to information from an undercover police
officer about a “potential narcotics transaction,”
intercepted a black GMC Envoy containing
[appellant] and two males at the corner of Norton
Street and Walnut Lane. In his testimony,
* Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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Officer [Felix] Nosik stated that while working
undercover from a confidential location at the
intersection of Washington [Street] and Chew
[Avenue] on December 3rd, he observed [a]ppellant
and two other men standing in a laundromat for
15 minutes from a confidential location and
witnessed a black male (later identified as a black
female) enter the laundromat and speak to
[a]ppellant after being directed to him by another
man standing inside the laundromat.
After watching this conversation, Officer Nosik
then observed the woman exchange U.S. currency
with [a]ppellant for an “unknown small-object.”
Following the exchange, Officer Nosik saw this buyer
place the object into a glass tube, light it and smoke
it. Based on his experience as a narcotics officer,
Officer Nosik believed that he witnessed a narcotics
transaction and continued to observe [a]ppellant.
Ten minutes later, [a]ppellant left the location in a
black GMC Envoy. Officer Nosik contacted his
backup officers, gave a description of the vehicle,
including the license plate number, and asked them
to intercept the Envoy.
In his testimony[,] Officer [John] Ellis said he
received the request and he pulled over the Envoy.
Officer Ellis then questioned [a]ppellant who was
sitting in the passenger side seat and asked him[,]
“[W]hat do you have on you?” Appellant responded
by stating[,] “I have some weed on me.” While
recovering the marijuana from [a]ppellant,
Officer Ellis also discovered 9 packets of
crack-cocaine tucked into [a]ppellant’s waistband
and immediately placed [a]ppellant under arrest.
After recovering the drugs, Officer Ellis placed them
on “property receipts and sent them to the chemistry
lab where they tested positive for marijuana and
crack-cocaine.”
Trial court opinion, 10/30/15 at 2-3 (citations to notes of testimony
omitted).
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The record reflects that appellant filed neither post-trial nor
post-sentence motions. Rather, appellant filed a timely notice of appeal to
this court. Appellant also complied with Pa.R.A.P. 1925(b). He now raises
the following issues for our review:
1. Did not the lower court err by denying
[appellant’s] motion in limine to prohibit the
Commonwealth from asserting the confidential
location privilege, regarding the location from
which the Commonwealth’s primary witness
saw a disputed drug sale, where aspects of the
witness’s observations were concededly false,
and where the lower court’s denial harmed
[appellant’s] ability to raise a reasonable doubt
about whether the witness saw the drug sale,
which violated of [sic] Pa.R.Crim.P. 573, due
process, the right to present a defense, and
cross-examine witnesses[?]
2. Did not the lower court err by instructing the
jury to ignore the defense [sic] closing
argument that the Commonwealth had gotten
greedy by pursing [sic] the excessive charge of
possession with intent to deliver instead of
knowing and intentional possession of a
controlled substance, where that was the sole
disputed factual question at trial, and where
the argument fairly responded to the
Commonwealth’s opening statement that
conflated breaking the law by possessing drugs
with possession with intent to deliver[?]
Appellant’s brief at 3.
In his first question presented, appellant claims that the trial court
erred in denying his pretrial motion to prohibit the Commonwealth from
claiming a privilege with respect to the location from which Officer Nosik
observed appellant sell a controlled substance. When viewing this issue as
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framed by appellant in his question presented, the record belies appellant’s
assertion.
The record reflects that on October 22, 2014,
the trial court heard an oral defense motion
requesting that it preclude Officer Nosik from
testifying that he observed appellant selling a
controlled substance from a confidential location.
The record further reflects that defense counsel did
not file a pretrial motion on the issue he raised in his
oral motion on October 22, 2014. We set forth the
relevant colloquy from the oral defense motion, as
follows:
[DEFENSE COUNSEL]: Your Honor, this is a
motion in limine to preclude or prevent
Officer Nosik from testifying that he was in
anyway in a confidential location with respect
to the observations that he made in this case.
Your Honor, at the preliminary hearing in this
matter as well as a motion to suppress, it is
abundantly clear that Officer Nosik arrived to the
scene at the major intersection of Chew Lane and
Washington Avenue, that he arrived in a vehicle and
then proceeded to move around on foot throughout
the location. At any given time, he has testified
previously, he is within 15 to 50 feet of the
laundromat. At the motion, he gave specific
distances for where he was at various times, but
there has been some reliance on him being in a
confidential location.
It’s my conclusion, Your Honor, that -- I’m
certainly not going to get into any detail of the type
of car he arrived in or was in on that particular
evening; but with respect to him moving
around, it’s inappropriate -- first of all, it’s not
confidential when you’re moving around on
foot, and it would be inappropriate and prejudicial
for him to rely upon that in front of a jury.
....
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[THE COMMONWEALTH]: If I may, Your Honor. I’m
not -- since I was told about this motion today at
9:30, I don’t have any case law for Your Honor. If I
had been told this yesterday, I would’ve certainly
brought some in to quote some authority.
When I’ve had this previously, narcotic
officers, when it is a location that is in use, Your
Honor, and when they conduct surveillances from
certain blocks, certain areas, they have their spots
that they sit in. And that is why the confidentiality of
that spot is protected.
I asked Officer Nosik if it is still a confidential
location, and he said it is, yes.
Normally, this motion is filed, you hear
testimony on it -- at least, that’s the way I’ve seen it
done before -- but Your Honor knows the case law
and would like to hear from Officer Nosik before
making an order to have him testify to it.
....
[DEFENSE COUNSEL]: Your Honor, if I could
respond to that. It’s a standard motion in limine.
There’s no case law at issue. The fact is an officer
is claiming he’s in a confidential location when,
again, prior testimony is indicated that he is on
foot throughout. You don’t get to claim
confidentiality as to where you’re standing in a
major intersection. I understand what counsel is
saying.
....
[THE COMMONWEALTH]: . . . . I’ve had this issue
before in waiver trials. I’ve never had it in a jury
trial. You know, you object when they ask for the
location because there’s certain spots that are used,
maybe a roof, maybe, you know, a particular type of
car. Each district only has one particular type of car.
And in an open courtroom, officers are not forced to
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reveal those certain factors that would indicate to
the community of the 14th District where they are,
what they’re doing and allow them to be seen in
conducting hidden surveillances.
There is -- I’m not aware of the names, but
I’m pretty sure there is case law on this topic. I
don’t know why counsel says there isn’t, because I’m
pretty sure this is an issue in a lot of narcotic cases.
[DEFENSE COUNSEL]: And, Your Honor, there is
case law with respect to fixed locations where
an officer is claiming confidentiality. I have no
issue with that if he was claiming to be in a
fixed location, but the fact is he’s not -- I arrived in
a car; I was mobile on foot throughout, 15 to 50 feet
away at any given time.
He’s observing the alleged transaction in this
case through various windows of the laundromat on
two different sides of the street. It’s absolutely
ridiculous to assert that -- and I have pictures of the
intersection. It’s absolutely ridiculous to assert that
within 50 feet of this corner laundromat that there is
any location that is fixed or confidential.
Notes of testimony, 10/22/14 at 4-8 (emphasis added).
Officer Nosik then testified that private-property owners permit him to
conduct surveillance on their properties, but that disclosure of those
locations would carry “severe” consequences for the private property
owners. (Id. at 14-16.) The officer further testified that he conducted a
portion of the surveillance that gave rise to appellant’s arrest and
subsequent conviction on private property. (Id. at 17.) After hearing
argument and the officer’s testimony, the trial court held that the location of
the privately owned property would remain confidential, but that the officer
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would be required to disclose the location of any and all public property on
which he conducted his surveillance of appellant. (Id. at 17-18.)
The record, therefore, demonstrates that appellant prevailed on the
oral motion that he presented on October 22, 2014. Stated differently, the
court agreed with appellant that “it’s not confidential when you’re moving
around on foot.” (Id. at 5.) Appellant also conceded that he had “no issue
with [confidentiality] if [the officer] was claiming to be in a fixed location.”
(Id. at 7.) Consequently, appellant cannot now complain about a ruling on
which he prevailed. That ruling, however, is not the gravamen of appellant’s
complaint on appeal.
In the argument section of his brief, appellant claims that the trial
court erred by not compelling Officer Nosik to disclose the confidential
location from which he conducted his surveillance of appellant. In response,
the Commonwealth argues that appellant waived this issue for failure to
raise it below. We agree.
Pa.R.Crim.P. 573, titled “Pretrial Discovery and Inspection” governs
pre-trial discovery motions and requires, in relevant part:
(B) Disclosure by the Commonwealth.
....
(2) Discretionary With the Court.
(a) In all court cases, except as
otherwise provided in Rules 230
(Disclosure of Testimony Before
Investigating Grand Jury) and 556.10
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(Secrecy; Disclosure), if the defendant
files a motion for pretrial discovery, the
court may order the Commonwealth to
allow the defendant’s attorney to inspect
and copy or photograph any of the
following requested items, upon a
showing that they are material to the
preparation of the defense, and that the
request is reasonable:
....
(iv) any other evidence
specifically identified by the
defendant, provided the
defendant can additionally
establish that its disclosure
would be in the interests of
justice.
Pa.R.Crim.P. 573(B)(2)(a)(iv).
Here, appellant failed to file the requisite motion for pretrial discovery
to request disclosure of the confidential location of Officer Nosik’s
surveillance and to establish that disclosure would be in the interests of
justice. Therefore, appellant waives this issue on appeal. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
Appellant next complains that the trial court erred in sustaining the
Commonwealth’s objection and instructing the jury to disregard appellant’s
comment in closing argument that the Commonwealth “got greedy” in
charging appellant with only PWID and not the lesser-included offense of
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knowing or intentional possession2 (“possession”) because it “had the effect
of applying to the entirety of the closing argument.” (Appellant’s brief at
29.) The record reflects that the following colloquy took place during
defense counsel’s closing argument:
[DEFENSE COUNSEL]: You did hear from Officer Ellis
that [appellant] had marijuana on him, three
packets, and nine packets of crack cocaine.
Ladies and gentleman, [appellant] is not
charged today with possession of those substances.
The Commonwealth, for whatever reason, got
greedy. They didn’t charge him --
[THE COMMONWEALTH]: Objection. Objection to
the Commonwealth got greedy.
THE COURT: You can continue.
[DEFENSE COUNSEL]: They didn’t charge him with
that.
What did they charge him with?
They charged him with drug dealing and
criminal conspiracy, not possession. They charged
him with engaging in a sale that was observed by a
police officer.
What evidence do you have of that?
There isn’t much. There’s at least not much
that’s not contradicted in some way for all the
reasons I just went through.
That’s what he’s being charged with. He’s
charged with drug dealing. . . .
2
35 P.S. § 780-113(A)(16).
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Notes of testimony, 10/23/15 at 22-23.
At the conclusion of defense counsel’s closing, the trial court excused
the jury to address the Commonwealth’s objection. The Commonwealth
again objected to defense counsel’s comment that the Commonwealth
“got greedy.” (Id. at 24-25.) It then requested that the court charge the
jury on the lesser-included offense of possession because defense counsel
opened the door by commenting in its closing argument that the
Commonwealth “got greedy” when it charged appellant with PWID and not
possession. (Id. at 25.) Initially, the trial court agreed with the
Commonwealth. Defense counsel, however, argued that a charge on
possession would “directly undercut” appellant’s closing argument. (Id. at
28.) The trial court ultimately agreed with appellant and refused to charge
the jury on possession. (Id. at 30-31.) The Commonwealth then requested
a curative instruction with respect to the comment that the Commonwealth
“got greedy.” The following colloquy then took place:
THE COURT: I will do that. I will do that because it
did shock my conscience. So I can do that. That
was what I was going to offer.
[THE COMMONWEALTH]: That’s fair.
[DEFENSE COUNSEL]: And just for clarification, Your
Honor, the comment specifically was, “The
Commonwealth got greedy”?
THE COURT: That’s it.
[DEFENSE COUNSEL]: Okay. I understand Your
Honor’s possession [sic] with respect to that.
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Id. at 31.
The court then instructed the jury as follows:
THE COURT: Ladies and gentlemen, I just want to
address with you something that happened in the
defense’s closing argument. He mentioned that the
Commonwealth got greedy. And I want you to
disregard that. It was in the context of a charge in
the case.
I want you to disregard the words
“Commonwealth got greedy,” okay?
....
Id. at 32.
Once again, the record reflects that the trial court agreed with defense
counsel when it refused to charge the jury on possession. In other words,
the record demonstrates that appellant received what he requested, which
was for the trial court to not charge the jury on the lesser-included offense
of possession. The record also reveals that appellant acquiesced to the trial
court’s curative instruction.
The record further demonstrates that the trial court only instructed the
jury to disregard the words, “Commonwealth got greedy,” and not the
premise of counsel’s closing argument which was that the Commonwealth
charged appellant with PWID and not possession. Although appellant baldly
asserts that the trial “court’s order was not limited merely to the words
‘got greedy’, but had the effect of applying to the entirety of the closing
argument” (appellant’s brief at 29), appellant fails to advance any
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meaningful argument or set forth case law to support that assertion. As
noted by the Commonwealth in its brief, “it is impossible to discern
[appellant’s] theory of relief.” (Commonwealth’s brief at 13.)
Therefore, notwithstanding the fact that the record belies appellant’s
claim that the trial court’s curative instruction to the jury to disregard the
three words, “Commonwealth got greedy,” somehow negated counsel’s
entire closing argument, appellant waives the issue for failure to set forth a
relevant legal analysis and to cite to relevant legal authority. See
Pa.R.A.P. 2119; see also Commonwealth v. Rhodes, 54 A.3d 908, 915
(Pa.Super. 2012) (an appellant’s failure to set forth a relevant legal analysis
and/or to cite to relevant legal authority results in waiver).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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