Com. v. Widgins, L. ( 2016 )


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  • J. S52011/16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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Document Info

Docket Number: 159 EDA 2015

Filed Date: 8/18/2016

Precedential Status: Precedential

Modified Date: 8/18/2016