Com. v. Hart, N. ( 2014 )


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  • J.S36036/14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee       :
    :
    v.                      :
    :
    :
    NATHANIEL HART,                             :
    :
    Appellant      :     No. 1007 EDA 2013
    Appeal from the Judgment of Sentence March 7, 2013
    In the Court of Common Pleas of Philadelphia County
    Criminal Division No(s).: CP-51-CR-0009045-2010
    BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 11, 2014
    Appellant, Nathaniel Hart, appeals from the judgment of sentence
    entered in the Philadelphia County Court of Common Pleas following a jury
    trial and his conviction for possession with intent to deliver a controlled
    1
    Appellant contends the court erred in denying his
    motion in limine to preclude the testimony of Detective Barbara Weldon,
    challenges the sufficiency of the evidence, and argues the court erred in
    denying his motions for acquittal and mistrial. We affirm. 2
    *
    Former Justice specially assigned to the Superior Court.
    1
    35 P.S. § 780-113(a)(30).
    2
    We note that the Commonwealth did not file a brief in the case sub judice.
    J. S36036/14
    The facts of this case, as summarized by the trial court are as follows:
    At trial, the Commonwealth presented testimony from
    Detective [James] Owens, Lieutenant [Charles] Jackson,
    Detective Weldon, and Police Officer [Kevin] Keys while
    [Appellant] presented testimony from Stacey Hammond. .
    ..
    5217 West Clarkson Avenue is a two-story row house
    located in Northwest Philadelphia. At about 6:00 a.m. on
    May 28, 2010, approximately 18 to 22 Philadelphia Police
    Officers went to this location to execute an arrest warrant
    for [Appellant].    Police knocked and announced their
    presence; no one responded. They subsequently battered
    down the front door. Approximately ten officers entered
    the house while the other officers remained outside and
    secured the perimeter of the property.
    The officers who entered the living room immediately
    recognized the smell of marijuana permeating the air. The
    officers divided into two search teams: one team scanned
    the main floor while the other team ascended the stairs to
    the second floor.
    The main floor consisted of a living room, dining room,
    and kitchen. The rooms were empty except for a bag of
    fertilizer in the dining room closet. The officers quickly
    cleared the main floor and proceeded down a flight of
    stairs into the basement. Similar to the main floor, the
    basement was devoid of any furniture; however, in the
    basement, police found a 12-gram bag of cultivated
    marijuana, mail addressed to [Appellant], a magazine
    they located [Appellant], sleeping and undressed. Before
    officers allowed [Appellant] to dress, they swept his pants
    for weapons. In one pocket, police found 31 $100 bills,
    five $50 bills, 99 $20 bills, and one $10 bill, amounting to
    $5,340.      Once dressed, [Appellant] was taken into
    custody.
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    Meanwhile, the other team of officers simultaneously
    searched the second floor of 5217 West Clarkson Avenue.
    The second floor had three bedrooms; two were
    functioning as an urban marijuana farm. In all, these two
    bedrooms contained 58 plants in various stages of growth
    as well as heat lamps, thermometers, irrigation and
    ventilation systems, and other paraphernalia used to grow
    and cultivate marijuana. Although plants were absent
    from the back bedroom, this room contained equipment
    similar to that found in the other two rooms.
    After securing a search warrant, Philadelphia Police
    confiscated the 58 plants and the items used to aid in their
    cultivation.
    Trial Ct. Op., 11/18/13, at 2-3 (references to the record omitted).
    Following the jury verdict of guilty of PWID, Appellant was sentenced
    filed   a   timely   court-ordered   Pa.R.A.P.   1925(b)   statement   of   errors
    complained of on appeal and the trial court filed a responsive opinion.
    Appellant raises the following issues for our review:
    in limine
    to preclude the testimony of Detective [Barbara] Weldon,
    as this testimony consisted of inculpatory evidence that
    was not disclosed until the eve of trial?
    2. Was the evidence was (sic) insufficient to establish that
    Appellant manufactured, delivered, or possessed with
    intent to manufacture or deliver a controlled substance,
    where the evidence presented at trial failed to establish
    that Appellant was in constructive possession of the
    marijuana at the home where he was sleeping?
    acquittal, as the evidence presented at trial at the close of
    ppellant
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    constructively possessed the marijuana discovered at the
    home where Appellant was sleeping?
    motion for mistrial, after detective Weldon testified that
    she had obtained information for the arrest of Appellant
    that Appellant had engaged in prior criminal activity.
    -3.
    First, Appellant avers that the trial court erred in denying his motion in
    limine to preclude the testimony of Detective Weldon because it consisted of
    inculpatory evidence that was not disclosed until the eve of trial, viz., the
    -written note memorializing her prior observation of
    Appellant at the property on May 19, 2010. Id. at 8-9. Appellant contends
    that because he was not made aware until the eve of trial of Detective
    -person identification of him accessing the Clarkson Street
    property with a key on May 18th and May 19th, and the circumstances
    surrounding the identification, he was unable to formulate an effective cross-
    examination or investigate a possible alibi defense. Id. at 10, 12. Appellant
    argues this omission constituted a violation of Brady v. Maryland, 
    373 U.S. 83
     (1963).
    When reviewing the denial of a motion in limine, we
    motion in limine is a procedure for obtaining a ruling on
    the admissibility of evidence prior to trial, which is similar
    to a ruling on a motion to suppress evidence, [therefore]
    our standard of review . . . is the same as that of a motion
    the sound discretion of the trial court, and our review is for
    an abuse of discretion.
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    Commonwealth v. Rosen, 
    42 A.3d 988
    , 993 (Pa. 2012) (citations
    omitted).
    After careful review of the record, including the trial testimony, the
    See Trial Ct. Op. at 4-9 (holding late disclosure of note did not constitute
    exculpatory evidence nor was it material evidence that would have changed
    verdict).
    are related. Appellant contends the evidence was insufficient to establish
    that he was in constructive possession of the marijuana discovered at the
    ef at 13.
    Id. at 23. Appellant concludes
    that because the evidence was insufficient, the trial court erred in denying
    his motion for judgment of acquittal. Id. at 34.
    Our standard of review of a sufficiency of the evidence challenge is to
    determine if the Commonwealth established beyond
    a reasonable doubt each of the elements of the
    offense, considering all the evidence admitted at
    trial, and drawing all reasonable inferences
    therefrom in favor of the Commonwealth as the
    verdict-winner.    The trier of fact bears the
    responsibility of assessing the credibility of the
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    witnesses and weighing the evidence presented. In
    doing so, the trier of fact is free to believe all, part,
    or none of the evidence.
    The Commonwealth may sustain its burden by means of
    wholly circumstantial evidence, and we must evaluate the
    entire trial record and consider all evidence received
    against the defendant.
    Commonwealth v. Brown, 
    48 A.3d 426
    , 430 (Pa. Super. 2012), (citation
    omitted), appeal denied, 
    63 A.3d 1243
     (Pa. 2013).
    Section 780-113(a)(30) provides:
    (a) The following acts and the causing thereof within the
    Commonwealth are hereby prohibited:
    *    *    *
    (30) Except as authorized by this act, the manufacture,
    delivery, or possession with intent to manufacture or
    deliver, a controlled substance by a person not
    registered under this act, or a practitioner not
    registered or licensed by the appropriate State board,
    or knowingly creating, delivering or possessing with
    intent to deliver, a counterfeit controlled substance.
    35 P.S. § 780-113(a)(30).
    In Brown, this Court opined:
    Because [the defendant] was not found with contraband
    on his person, the Commonwealth was required to
    establish that [the defendant] had constructive possession
    of the seized items to support his convictions.
    Constructive possession is a legal fiction, a pragmatic
    construct to deal with the realities of criminal law
    enforcement.       Constructive possession is an
    inference arising from a set of facts that possession
    of the contraband was more likely than not. We
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    o control the contraband
    application, we have held that constructive
    possession may be established by the totality of the
    circumstances.
    Brown, 
    48 A.3d at 430
     (citations omitted).
    of acquittal challenges the sufficiency of the
    evidence to sustain a conviction on a particular charge, and is granted only
    in cases in which the Commonwealth has failed to carry its burden regarding
    Commonwealth v. Graham, 
    81 A.3d 137
    , 142 (Pa. Super.
    2013) (citation omitted), appeal denied, 
    93 A.3d 462
     (Pa. 2014).
    Instantly, as in Brown
    person.    Therefore, the Commonwealth had to establish that he had
    constructive possession of it. See Brown, 
    48 A.3d at 430
    .
    The trial court opined:
    Here, [Appellant] insists that he is the victim; he was
    simply in the wrong place at the wrong time. To support
    his theory, [Appellant] presented evidence that in May
    2010, he resided at 257 West Zeralda Street with his
    girlfriend and her two children. On May 27, 2010, after a
    late-night argument, he gathered some personal items,
    including $5,000 and important mail documents, and left
    West Clarkson Avenue. When one considers the evidence
    as a whole, as the law requires, the idea that [Appellant]
    was merely an overnight guest at 5217 West Clarkson
    Avenue is not credible.
    *    *     *
    on May 28, 2010 was not coincidental. Nine days earlier,
    on May 19, 2010, police confirmed that [Appellant] had
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    free, unfettered access to this property. On that date,
    Detective Weldon observed [Appellant] exit 5217 West
    Clarkson Avenue at 1:34 p.m. and lock the front door with
    Clarkson Avenue indicated that he had the power to
    control the narcotics. To argue to the contrary simply
    defies logic. Thus, the issue is whether [Appellant] had
    the intent to control the contraband. The evidence shows
    that he did.
    In addition to the 58 plants found inside the property,
    evidence supporting the fact finders[ ] determination that
    [Appelllant] had conscious dominion over the marijuana
    includes, but is not limited to the 31 $100 bills, five $10
    bills, and 99 $20 bills amounting to more than $5,000; a
    12-gram bag of cultivated marijuana; and although it
    mail. The cultivated marijuana, paired with the large
    collection of currency, strongly indicate that [Appellant]
    engaged in street dr
    5217 West Clarkson Avenue.
    Trial Ct. Op. at 11-
    determinations and discern no error.        See Brown, 
    48 A.3d at 430
    .
    unavailing, his claim that the court erred in denying his motion for acquittal
    is without merit. See Graham, 
    81 A.3d at 142
    .
    Lastly, Appellant contends the trial court erred in denying his motion
    engaged in prior criminal act
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    Id.
    hat
    Id.
    at 40.
    Appellant claims the following testimony elicited from Detective
    Weldon by the Commonwealth was grounds for a mistrial.
    [The Commonwealth]: Detective, those docume
    been handed, do you recognize those?
    A: Yes, I do.
    Q: What are those documents?
    A: The first one is an affidavit of probable cause and the
    second is a warrant arrest.
    Q: And on those documents there, is the name of
    [Appellant], correct?
    A:
    five addresses on there?
    Q: One of those addresses, Detective, is 5217 West
    Clarkson Street?
    Q: Detective, c
    referenced on the warrant, in the affidavit?
    A: During this time, when we do an affidavit of probable
    cause these other addresses, the last four are the
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    [Counsel for Appellant]: Objection, Judge. Can we see you
    at sidebar, please?
    The Court: Yes.
    (Whereupon, a sidebar discussion was held off the record)
    The Court: The jury will disregard the last answer to that
    last question, and I would direct the Commonwealth to
    rephrase that question.
    N.T. at 114-15.
    already aware that there was a non-
    involvement with the criminal justice system had already been established .
    Id. at 154-55.
    It is well-
    of a motion for a mistrial is limited to determining whether
    discretion is not merely an error of judgment, but if in
    reaching a conclusion the law is overridden or misapplied,
    or the judgment exercised is manifestly unreasonable, or
    the result of partiality, prejudice, bias or ill-will . . .
    dent upon which the motion is based is
    of such a nature that its unavoidable effect is to deprive
    the defendant of a fair trial by preventing the jury from
    necessary where cautionary instructions are adequate to
    overcome prejudice.
    Commonwealth v. Chamberlain, 
    30 A.3d 381
    , 422 (Pa. 2011) (citations
    omitted).
    In Commonwealth v. Hudson, 
    955 A.2d 1031
     (Pa. Super. 2008), the
    defendant filed a motion in limine to exclude any reference to his prior
    - 10 -
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    convictions, which the trial court granted.     
    Id. at 1034
    .   The defendant
    contended the trial court should have declared a mistrial after a witness for
    the Commonwealth testified that he thought the defendant was in town to
    see his parole or probation officer. 
    Id.
     This Court opined:
    Evidence of prior crimes or bad acts may not be
    character or proclivities.   This rule is violated where
    evidence presented to the jury either expressly, or by
    reasonable implication, indicates that the defendant has
    engaged in other criminal activity. However, mere passing
    reference to prior criminal activity is insufficient to
    establish improper prejudice by itself. The inquiry into
    whether prejudice has accrued is necessarily a fact specific
    one.
    If evidence of prior criminal activity is inadvertently
    presented to the jury, the trial court may cure the
    improper prejudice with an appropriate cautionary
    instruction to the jury.
    
    Id.
     (citations omitted).
    s that the jury will follow the instructions of the
    Commonwealth v. Spotz, 
    896 A.2d 1191
    , 1224 (Pa. 2006)
    (citation omitted).   Instantly, after Detective Weldon uttered the word
    e
    instruction. See Hudson, 
    955 A.2d at 1034
    . The jury is presumed to follow
    See Spotz, 896 A.2d at 1224.
    rest warrant.   Detective
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    multiple addresses appearing on it as follows:
    A: This is a copy of the warrant of arrest for [Appellant].
    Q: And, Detective, to be clear, there is more than one
    address on that warrant, correct?
    Q: But one of those addresses is 5217 West Clarkson
    Street?
    primary
    address on the warrant.
    Id. at 33-34. Appellant did not raise an objection to the testimony.
    Ct. Op. at 14. We agree. The mere passing reference by Detective Weldon
    was insufficient to establish prejudice warranting a mistrial. See Hudson,
    
    955 A.2d at 1034
    . We discern no abuse of discretion by the trial court in
    denying the motion for a mistrial. See Chamberlain, 30 A.3d at 422.
    Judgment of sentence affirmed.
    - 12 -
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/11/2014
    - 13 -
    

Document Info

Docket Number: 1007 EDA 2013

Filed Date: 8/11/2014

Precedential Status: Precedential

Modified Date: 10/30/2014