Com. v. Moore, W. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WALTER MOORE, III, : No. 841 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, November 16, 2012,
in the Court of Common Pleas of Lawrence County
Criminal Division at No. CP-37-CR-0000692-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 12, 2014
Following a jury trial, Walter Moore, III was convicted of possession of
a controlled substance, possession with intent to deliver a controlled
substance, delivery of a controlled substance, and criminal use of a
communication facility. He appeals from the judgment of sentence entered
on November 16, 2012, in the Court of Common Pleas of Lawrence County.
We affirm.
In 2009, appellant came to the attention of law enforcement through
Oscar Williams, a confidential informant (“CI”). (Notes of testimony,
10/8/12 at 57.) On February 27, 2009, Agent Jason Hammerman of the
Pennsylvania Attorney General’s Office and the CI attempted to set up a
controlled buy with appellant but they were unable to make contact with
appellant by phone. (Id. at 58-59.) On the afternoon of March 2, 2009,
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Agent Hammerman met with the CI and attempted to contact appellant at a
new cell phone number, as the CI stated appellant’s number had changed to
724-614-9399. (Id. at 59-60.) Again, they were unable to reach appellant.
(Id. at 60.) However, later that day, at approximately 4:45 p.m., the CI
contacted the agent and stated that he received a text message from
appellant and a deal was arranged to purchase 1.25 ounces of crack cocaine
for $1,500. (Id. at 61.)
Agent Hammerman made arrangements with other law enforcement
officers and they met the CI, who was essentially strip searched for money,
drugs, weapons, and other contraband in preparation for making a controlled
buy. (Id. at 62-64.) Agent Hammerman then had the CI place a
consensually recorded phone call to 724-614-9399, during which the
location of the buy was arranged.1 (Id. at 64.) Agent Hammerman
identified appellant’s voice during this call. (Id. at 66.) The agent testified,
“The course of the [recorded] conversation that transpired where the CI
asked [appellant] where he was and [appellant] said I’m right around the
corner. The call was ended.” (Id. at 65.) The entirety of the recorded call
was played for the jury. (Notes of testimony, 10/9/12 at 30-32.)
The CI was provided with $1,500 in recorded bills and was dropped off
at the meeting location, which was at the corner of Ash and Ray Streets in
1
This call was played for the jury during trial. (Notes of testimony, 10/9/12
at 31.).
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New Castle. (Notes of testimony, 10/8/12 at 72.) Agent Hammerman
testified that he observed the CI walk onto Ray Street, and then the agent
turned his vehicle onto Elder Street where he saw appellant driving a
burgundy Cadillac Escalade pickup truck. (Id. at 73-74.) The agent then
turned onto Scott Street to continue around the block, and appellant and the
CI drove by in the Escalade; no one else was observed in the vehicle. (Id.
at 77.) The agent stated that he could not see the interior of the vehicle.
(Id. at 111.)
Shortly thereafter, the CI was seen on foot turning a corner, and he
walked directly to a vehicle driven by Corporal Anthony Lagnese of the
New Castle Police Department. (Id. at 78-79.) Appellant gave the corporal
one and one quarter ounces of crack cocaine separated into five smaller
bags. The entire buy took approximately four minutes. (Id. at 79.) No
other people were observed on the street during this time, and the CI was
not seen having contact with anyone other than law enforcement and
appellant. (Id. at 79-80, 82.) The CI was again strip-searched, and no
drugs, currency, or paraphernalia were found on his person. (Id. at 82.)
The parties stipulated that the suspected crack was kept in an appropriate
chain of custody, tested positive for cocaine, and weighed 33.5 grams. (Id.
at 83; notes of testimony, 10/9/12 at 7-8.)
The CI testified at trial and explained that appellant provided him with
his telephone number; the CI contacted appellant using this number and set
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up a drug buy to take place on Ray Street. (Notes of testimony 10/9/12 at
140, 143.) The CI stated he was dropped off by Agent Hammerman; he
walked up the street and got into appellant’s vehicle. The CI gave appellant
the agreed-upon $1,500 in exchange for the drugs. (Id. at 162.) The CI
testified that from the time he was dropped off by law enforcement until he
was picked up again, he had no contact with anyone other than appellant;
he also stated that he never picked up anything from the ground. (Id. at
157.) The CI dictated a statement to the police and signed it, as he cannot
read or write. (Id. at 160; notes of testimony, 10/8/12 at 17-19.) The CI
admitted he continued to have legal difficulties due to his continued
involvement in the drug trade; this was explored by both the Commonwealth
and the defense.
Corporal Lagnese also identified the CI and appellant as the occupants
of appellant’s vehicle at the time of the buy. (Notes of testimony 10/10/12
at 31.) Corporal Lagnese picked up the CI after the buy and obtained the
drugs. (Id. at 34.) Corporal Lagnese testified that he did not observe the
CI meet with anyone other than appellant or make any stops along the way.
(Id. at 29-30.) Except for a brief moment, the CI was under constant law
enforcement surveillance. (Id. at 37-38.)
Following a three-day jury trial, appellant was convicted of one count
each of possession of a controlled substance, possession of a controlled
substance with intent to deliver, delivery of a controlled substance, and
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criminal use of a communication facility. On November 16, 2012, appellant
was sentenced to an aggregate of not less than five years nor more than
ten years’ incarceration, pursuant to 18 Pa.C.S.A. § 7508. Appellant filed a
post-sentence motion on November 26, 2012, and following a hearing, the
motion was denied. This timely appeal followed.
Appellant complied with the trial court’s order to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an
opinion. The following issues have been presented for our review:
1. Whether the trial court erred in denying
Appellant’s Post-Sentence Motions with respect
to Appellant being denied a fair trial where
Agent Jason Hammerman referenced a prior
bad act at trial?
2. Whether the trial court erred where it held that
the Commonwealth’s conduct in the following
instances failed to constitute a violation of the
requirements of Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963):
i. where the Commonwealth did not
disclose the investigatory notes of
Agent Jason Hammerman?
ii. where the trial court failed to
mandate that the Attorney General
disclose its internal operating
procedures regarding the use of
the confidential informant in this
case, Oscar Williams (hereinafter,
“C.I.”)?
iii. where the Commonwealth failed
[to] disclose the grand jury
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testimony of Agent Jason
Hammerman?
iv. Where the Commonwealth failed to
provide the debriefing location of
the C.I.?
3. Whether the trial court erred in failing to
suppress, and subsequently allowing into
evidence, certain text messages, where said
messages were not properly authenticated?
4. Whether the trial court erred where it held that
Appellant’s convictions were not against the
sufficiency of the evidence?
5. Whether the trial court erred where it held that
his convictions were not against the weight of
the evidence?
6. Whether the trial court erred at trial where it
allowed the C.I. to dress in street clothes, as
opposed to prison garb, when he was
incarcerated at the time of trial?
7. Whether the trial court erred for failing to
strike a juror where she was the wife of a
retired police chief?
8. Whether the trial court erred at trial by failing
to sustain defense counsel’s continuing
objection that the Commonwealth was leading
the C.I. during direct examination?
9. Whether the trial court erred where it held that
Appellant was properly sentenced pursuant to
the mandatory term of imprisonment under
18 Pa.C.S.A. §7508, when the Commonwealth
failed to provide defense counsel with
reasonable notice to proceed under said
statute?
10. Whether the trial court erred in not allowing
Appellant to proceed with a Motion for Habeas
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Corpus after he waived his preliminary
hearing?
11. Whether the trial court erred at Appellant’s
Omnibus Pretrial Hearing by permitting
Agent Jason Hammerman to read a statement
of consent allegedly signed by the C.I., over
the hearsay objection of defense counsel,
thereby allowing the charges to improperly
proceed to a jury trial?
12. Whether the trial court erred at Appellant’s
Omnibus Pretrial Hearing by permitting
Agent Jason Hammerman to read a statement
of consent allegedly signed by the C.I. in this
case, where the C.I. did not testify as to
whether he was coerced into signing said
statement, thereby using such evidence to
conclude that it was proper to allow the
Commonwealth to proceed to trial against
Appellant?
Appellant’s brief at 6-9.2
The first issue presented concerns whether the trial court erred in
declining to grant a mistrial after Agent Hammerman referenced a “prior bad
act” on cross-examination.
“It is axiomatic that evidence of prior crimes [or bad acts] is not
admissible for the sole purpose of demonstrating a criminal defendant’s
propensity to commit crimes.” Commonwealth v. Jackson, 900 A.2d 936,
940 (Pa.Super. 2006) (internal citations omitted). See Pa.R.E. 404(b)(1).
This rule is violated where evidence presented to the jury either expressly,
2
In addressing these issues, we note that appellant has failed to indicate
where in the record the issues are preserved for appeal. See
Pa.R.A.P. 2119(e) (statement of place of preservation of issues).
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or by reasonable implication, indicates that the defendant has engaged in
other criminal activity. Commonwealth v. Padilla, 923 A.2d 1189, 1195
(Pa.Super. 2007), appeal denied, 934 A.2d 1277 (Pa. 2007). However,
mere passing reference to prior criminal activity is insufficient to establish
improper prejudice by itself. Id. The inquiry into whether prejudice has
accrued is necessarily a fact specific one. Id.
Appellant directs our attention to the following portion of testimony:
Q: Okay. So, and again, the only conversation
you heard between this confidential informant
and [appellant] is the confidential informant
saying where you at, and him saying I’m
around the corner?
A: Correct.
Q: And when you said that he--he was saying
around the corner was it your understanding
that he was saying he was around the corner
from the CI’s house?
A. No. Well, we weren’t sure. He said the CI
advised us that this was an area where they
had done prior transactions. So we knew
that’s where to go.
Notes of testimony, 10/9/12 at 102 (emphasis added). The defense lodged
an objection, arguing that the witness made a reference to a prior bad act.
(Id.)
Appellant now argues that the agent’s response “unavoidably
imbedded in the minds of the jurors that [a]ppellant had a history of selling
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drugs . . . at the exact spot at which it is alleged that the underlying deal
took place.” (Appellant’s brief at 21.)
Appellant relies on Commonwealth v. LeGares, 709 A.2d 922
(Pa.Super. 1998). In LeGares, we found that the trial court erroneously
admitted into evidence criminal activity of the appellant, which was
unrelated to the charges. In LeGares, the admitted evidence was testimony
that appellant had discharged a firearm on a prior occasion, similar to the
one used in the murder, approximately three and one-half blocks away from
the murder scene. Id. at 926. We find LeGares distinguishable as the
testimony therein was clearly referring to the appellant. Here, as the trial
court found, the agent’s use of the term “they” was ambiguous and could
have been a reference to the CI’s prior transactions with others rather than
appellant. (Trial court opinion, 5/4/12 at 24.)
We conclude there is no merit to appellant’s argument. We fail to see
how the passing reference testimony could be characterized as evidence of
“prior bad acts” of appellant. There was no explicit mention of a prior drug
transaction involving appellant. We agree with the trial court that the
reference was veiled and did not have the unavoidable effect of depriving
appellant of a fair trial. We also note that the challenged remark was
elicited by defense counsel in response to a question asked and the response
was not exploited by the Commonwealth. Additionally, while appellant
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reserved the right to request a curative instruction, he ultimately did not
seek such an instruction. No relief is due.
Next, appellant argues that he was denied a fair trial as the
Commonwealth violated Brady, supra, four separate times. (Appellant’s
brief at 22.) We will address each Brady claim in the order presented in
appellant’s brief.
To establish a violation under Brady, an
appellant must demonstrate: 1) suppression by the
prosecution 2) of evidence, whether exculpatory or
impeaching, favorable to the [appellant], 3) to the
prejudice of the [appellant]. The evidence
purportedly suppressed must have been material to
guilt. Evidence is material if there is a reasonable
probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have
been different.
Commonwealth v. Clark, 961 A.2d 80, 89 (Pa. 2008) (citations and
quotation marks omitted) (alteration in original).
The first allegation of a Brady error involves Agent Hammerman’s
initial notes of the investigation, which were destroyed. (Appellant’s brief at
23-25.) During trial, Agent Hammerman testified that he destroyed his
initial notes after he drafted his report. (Notes of testimony, 10/9/12 at 34.)
Appellant misperceives the essence of Brady. Once defense counsel has
made a request for so-called “Brady material,” which again is exculpatory
evidence, the prosecution is under an obligation to produce all such material
responsive to the request to an accused. Here, there was nothing to
produce as the agent had destroyed his notes; and as such, this matter is
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not properly characterized as a Brady issue. We are thus unpersuaded by
this argument and agree that appellant has not demonstrated that written
notes were withheld by the prosecution.3
Next, appellant avers that the Commonwealth failed to produce the
debriefing location of the CI. (Appellant’s brief at 25.) Following review, we
find the trial court’s opinion, filed April 25, 2013, properly disposes of this
question. We will adopt it as our own and affirm on that basis. (Trial court
opinion, 4/25/13 at 22-23.)
Appellant also argues that the Commonwealth committed a Brady
violation by not disclosing the Attorney General’s operating procedures
regarding the use of the CI. (Appellant’s brief at 28.) Again, we find no
error with the trial court’s rationale regarding this Brady claim. The trial
court’s opinion disposing of appellant’s amended omnibus motion, filed on
May 4, 2012, and its Rule 1925(a) opinion, filed April 25, 2013, properly
dispose of this question. We will adopt them as our own and affirm on that
basis. (Trial court opinion, 5/4/12 at 5-7; trial court opinion 4/25/13 at 21.)
The final Brady claim presented concerns the Commonwealth’s failure
to disclose the grand jury testimony of Agent Hammerman. (Appellant’s
3
Moreover, as the trial court points out, appellant has not directed this court
to the place in the record where he requested Agent Hammerman’s
handwritten notes. (Trial court opinion, 4/25/13 at 22.) See
Pa.R.A.P. 2117(c)(4), Pa.R.A.P. 2119(e). We observe that appellant’s
omnibus pre-trial motions to compel discovery did not address or request
the production of these notes. (Docket #46, 52.) Additionally, this issue
was not addressed at the pre-trial hearing.
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brief at 29.) Following a review of the record, we cannot find that appellant
requested or applied for the disclosure of the grand jury testimony. (See
Docket #46, 52.) Nor does appellant direct this court to where he has
preserved this issue for appeal during trial; appellant is required to set forth
in both the statement of the case and in the argument of the appellate brief
the place in the record where the issue presented for decision on appeal has
been raised or preserved below. Pa.R.A.P. 2117(c)(4), Pa.R.A.P. 2119(e).
Thus, we could find this claim waived.
However, after reviewing appellant’s argument on appeal, we agree
with the Commonwealth that appellant has failed to establish that there was
information in the agent’s grand jury testimony that differed from his trial
testimony in a way that was favorable to the defense. Appellant merely
states that “it absolutely can be inferred that [the] grand jury testimony
would have provided Appellant, at least, with an invaluable tool for
cross-examination of [Agent] Hammerman.” (Appellant’s brief at 29.) Mere
speculation will not suffice.
We now turn to appellant’s claim that he was denied a fair trial
because the Commonwealth introduced text messages without proper
authentication. (Appellant’s brief at 29.) Specifically, he avers that the CI
testified to the content of alleged text messages from memory, and there
was no circumstantial evidence offered to substantiate the messages.
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In permitting the testimony, the trial court, relied on Commonwealth
v. Koch, 39 A.3d 996 (Pa.Super. 2011), appeal granted, 44 A.3d 1147
(Pa. 2012). In Koch, the defendant was convicted of possession with intent
to deliver and possession of a controlled substance as an accomplice. On
appeal, the defendant challenged the admission at trial of drug-related text
messages from her phone, contending the messages were not properly
authenticated as there was no evidence substantiating that she was the
author of the messages and the messages were inadmissible hearsay. Id.
at 1002, 1005. This court reversed, finding merit to both contentions. Id.
at 1005-1007.
The court addressed the question of authentication of text messages
as an issue of first impression, finding precedent from Pennsylvania and
other states relied upon the principle that e-mails and text messages are
documents subject to the same general requirements for authenticity as
non-electronic documents. Id. at 1003-1004. The Koch court stated:
As these cases illustrate, the difficulty that
frequently arises in e-mail and text message cases is
establishing authorship. Often more than one
person uses an e-mail address and accounts can be
accessed without permission. In the majority of
courts to have considered the question, the mere
fact that an e-mail bears a particular e-mail address
is inadequate to authenticate the identity of the
author; typically, courts demand additional evidence.
Text messages are somewhat different in that
they are intrinsic to the cell phones in which they are
stored. While e-mails and instant messages can be
sent and received from any computer or smart
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phone, text messages are sent from the cellular
phone bearing the telephone number identified in the
text message and received on a phone associated
with the number to which they are transmitted. The
identifying information is contained in the text
message on the cellular telephone. However, as
with e-mail accounts, cellular telephones are not
always exclusively used by the person to whom the
phone number is assigned.
Id. at 1004-1005.
The Koch court found the trial court erred in admitting the text
messages because although the defendant acknowledged ownership of the
phone, a police officer conceded that the author of the drug-related
messages could not be ascertained and some of the messages referred to
the defendant in the third person, indicating she did not write some of the
messages. Id. at 1005. We found that authentication of electronic
communications requires more than mere confirmation that the number
belonged to a particular person and that additional evidence which tends to
corroborate the identity of the sender is required. Id. at 1005. The court
noted there was no testimony from the persons who sent or received the
text messages and no contextual clues in the messages tending to reveal the
identity of the sender. Id. We found the defendant’s physical proximity to
the telephone at the time of arrest was of no probative value in determining
whether she authored text messages days or weeks before. Id.4
4
Furthermore, the messages were not admissible as admissions of a party
opponent because the Commonwealth was unable to prove the defendant
was the author of the messages. Id. at 1006.
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The trial court, and the Commonwealth, posits that sufficient
circumstantial evidence was presented to corroborate appellant’s identity as
the sender of the messages the CI testified that he received. First, the CI
who was a party to the text messages, and not a police officer as in Koch,
testified regarding the contents of the text messages. The CI testified that
he received a text message from the cellular telephone number assigned to
appellant, and the messages set forth the details of the transaction which
would take place. The CI then received a telephone call from this number
indicating that he was “around the corner” and ready to meet to complete
the sale. Agent Hammerman verified that it was appellant’s voice on the
call. When the CI met with appellant, the exact transaction described in the
texts messages occurred. When combined, all of this evidence is sufficient
to authenticate that the text message to the CI was written by appellant,
and the court did not abuse its discretion in admitting the CI’s testimony.5
The fourth issue presented concerns the sufficiency of the evidence
supporting his convictions. (Appellant’s brief at 31.) Our standard of review
is well settled:
The standard we apply in reviewing the
sufficiency of the evidence is whether viewing all the
evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
5
Additionally, the officer was cross-examined about the investigation and
the fact that they did not pull any of the phone logs from the CI to see with
whom he was communicating. (Notes of testimony, 10/9/13 at 120,
126-128.)
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crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond
a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the [finder] of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa.Super. 2013),
quoting Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super. 2005),
appeal denied, 897 A.2d 452 (Pa. 2006) (citations omitted).
We note that, in his sufficiency arguments, appellant suggests that the
Commonwealth’s witnesses were incredible. (See appellant’s brief at
34-36.) A sufficiency of the evidence review, however, does not include an
assessment of the credibility of the testimony offered by the Commonwealth.
Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa. 1994). Such a claim
is more properly characterized as a weight of the evidence challenge.
Commonwealth v. Bourgeon, 654 A.2d 555, 558 (Pa.Super. 1994),
appeal denied, 668 A.2d 1121 (Pa. 1995).
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Nevertheless, we find no error with the trial court’s findings regarding
the sufficiency of the evidence. We have reviewed the briefs, the relevant
law, and the opinion authored by the Honorable Thomas M. Piccione. We
find that Judge Piccione’s opinion correctly disposes of appellant’s sufficiency
issue, and accordingly, we affirm on that basis. (Trial court opinion, 4/25/13
at 10-16.)
Appellant also argues that the verdicts were against the weight of the
evidence. (Appellant’s brief at 37.)
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or
denying a motion for a new trial based
on a challenge to the weight of the
evidence is unfettered. In describing the
limits of a trial court’s discretion, we
have explained[,] [t]he term ‘discretion’
imports the exercise of judgment,
wisdom and skill so as to reach a
dispassionate conclusion within the
framework of the law, and is not
exercised for the purpose of giving effect
to the will of the judge. Discretion must
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be exercised on the foundation of
reason, as opposed to prejudice,
personal motivations, caprice or arbitrary
actions. Discretion is abused where the
course pursued represents not merely an
error of judgment, but where the
judgment is manifestly unreasonable or
where the law is not applied or where the
record shows that the action is a result of
partiality, prejudice, bias or ill will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original) (citations omitted).
Appellant refers us to the argument he made in his sufficiency
challenge concerning the veracity of the CI. He again points out that a
hand-to-hand transaction was never observed. The trial court, however,
reviewed the evidence and rejected appellant’s weight claim based on the
entirety of the record. The parties presented conflicting evidence that the
jury, as fact-finder, was authorized, and indeed required, to accept or reject.
The jury’s choice to believe the CI’s version of the events was purely within
its discretion and will not be disturbed on appeal; it is not this court’s duty,
but that of the fact-finder, to resolve a credibility dispute. Upon review of
the entire record and in deference to our standard of review, we determine
that the trial court did not abuse its discretion by finding that the verdict did
not shock the conscience. Thus, we conclude that the court made no error
in refusing to grant a new trial based on the weight of the evidence.
Next, appellant avers that he was denied a fair trial as the CI was
permitted to wear civilian clothing instead of his prison attire. (Appellant’s
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brief at 39.) Noting that there is no precedential decision to rely on,
appellant suggests that it is “inappropriate to allow an inmate-witness to
wear plainclothes in order to give the perception of trustworthiness in the
minds of the jury.” (Id.) We find this argument to be wholly without merit
and illogical. As the trial court succinctly stated, “[appellant’s] counsel
extensively questioned the CI about his prior arrests and his current
residence in prison. [Appellant’s] presumption of innocence was in no way
affected by the CI’s attire.” (Trial court opinion, 8/5/13 at 11.)
Appellant next claims that he was denied a fair trial where the trial
court allowed the wife of a retired police chief to sit on the jury panel.
However, the notes of testimony from the voir dire were not transcribed.
“Pa.R.A.P. 1911 makes it abundantly plain that it is the responsibility of the
Appellant to order all transcripts necessary to the disposition of his appeal.”
Commonwealth v. Steward, 775 A.2d 819, 833 (Pa.Super. 2001), appeal
denied, 792 A.2d 1253 (Pa. 2001). Moreover, appellant has not attempted
to supplement the record with a statement in absence of transcript pursuant
to Pa.R.A.P. 1923. Therefore, we consider the issue waived. Id.
In the eighth issue, appellant contends that he was denied a fair trial
where the Commonwealth asked leading questions during the direct
examination of the CI. (Appellant’s brief at 41.) Following review of the
record, we cannot find that the trial court abused its discretion.
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Generally, the party calling a witness in a criminal proceeding may not
interrogate the witness by putting leading questions to the witness.
Commonwealth v. Chambers, 599 A.2d 630, 640 (Pa. 1991). However,
Pennsylvania Rule of Evidence 611(c) recognizes the necessity of permitting
leading questions “to develop” a witness’ testimony. Pa.R.E. 611(c). The
rule that a party calling a witness is not permitted to ask leading questions is
to be liberally construed, with a large measure of discretion in the court to
permit parties to elicit any material truth without regard to the technical
considerations of who called the witness. Chambers, supra;
Commonwealth v. Deitrick, 70 A. 275 (Pa. 1908).
As the Commonwealth observes, defense counsel lodged three
objections during direct examination. The first objection and the third
objection were sustained; the Commonwealth voluntarily rephrased the
second question. (Notes of testimony, 10/9/12 at 145-146, 165, 168-170.)
The trial court observed the CI was not sophisticated and provided the
prosecutor some leeway under the circumstances. We cannot find that the
elicited responses were of such a character that the information would not
have come into evidence but for the leading format. Moreover, appellant
has not cited any legal authority to successfully demonstrate that the type of
questions posed by the prosecutor went beyond the recognized exception
articulated in the Rules of Evidence or that these questions and the elicited
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responses proved prejudicial. See generally Pa.R.A.P. 2119. Accordingly,
no relief is due.
Next, appellant avers that he did not receive appropriate notice of the
Commonwealth’s intent to seek the applicable mandatory minimum
sentence. (Appellant’s brief at 41.) We find the trial court has properly
disposed of this issue, and thus, we affirm on that basis. (Trial court
opinion, 4/25/13 at 27-29.)
In his tenth issue, appellant contends the trial court erred in denying
his writ of habeas corpus. (Appellant’s brief at 42.) No relief is due.
At the time scheduled for a preliminary hearing on June 18, 2009,
appellant entered into a stipulation that “the facts that the Commonwealth
would present would be sufficient to prove a prima facie case.” (Notes of
testimony, 6/18/09 at 2.) Thereafter, appellant filed a petition for writ of
habeas corpus. A hearing on appellant’s amended omnibus motion was
held on April 25, 2012, and the Commonwealth argued that appellant waived
his right to challenge the Commonwealth’s evidence in a writ of
habeas corpus due to its prior stipulation. The trial court concurred and
denied the petition.
We find no error. If a habeas hearing were held, the court would
have relied on this stipulation. Commonwealth v. Morman, 541 A.2d 356,
360 (Pa.Super. 1988) (“To make this determination [at a habeas corpus
hearing], the trial court should accept into evidence the record from the
- 21 -
J. A11030/14
preliminary hearing as well as any additional evidence which the
Commonwealth may have available to further prove its prima facie case.”).
Thus, as the Commonwealth points out, a habeas hearing would have
served no purpose. Furthermore, it is well settled that “once a defendant
has gone to trial and has been found guilty of a crime, any alleged defect in
the preliminary hearing is rendered immaterial.” Commonwealth v.
Kelley, 664 A.2d 123, 127 (Pa.Super. 1995), appeal denied, 674 A.2d
1068 (Pa. 1996). Therefore, such a claim cannot serve as a basis for relief.
The final claim presented is whether the trial court improperly applied
the rules of evidence at the hearing on the amended omnibus pre-trial
motion and improperly allowed the case to proceed to trial. (Appellant’s
brief at 43.) Once again, we affirm based on the trial court’s well-reasoned
opinion. (Trial court opinion, 8/5/13 at 7-8.)
Judgment of sentence affirmed.
Gantman, P.J.E joins the Memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
- 22 -
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COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
VS. LAWRENCE COUNTY, PENNSYLVANIA
WALTER MOORE, III, a/k/a NO. 692 OF 2009, CR.
WALTER KEVIN MOORE, III
OTN: K894083-1
APPEARANCES
For the Commonwealth: Kristine M. Ricketts, Esquire
Deputy Attorney General
Office of the Attorney General
105 Independence Drive
Butler, PA 16001
For the Defendant: Bradley G. Olson, Jr., Esquire
312 North Jefferson Street
New Castle, PA 16101
OPINION
Hodge, J. May 4, 2012
Before the Court for disposition is an Amended Omnibus
Pretrial Motion consisting of a Petition for Writ of Habeas
Corpus, a Motion to Suppress Evidence, and a Motion to Compel
Discovery, filed by the Defendant, Walter Moore, II!
(hereinafter, "Defendant") . A hearing on this matter was held
on April 25, 2012, at which time the Commonwealth submitted
the Preliminary Hearing Transcript and testimony of Agent
Jason M. Hammerman.
According to the findings of the investigating grand
jury, the Defendant arranged to meet with Oscar Williams
53"D
JUDICIAL (hereinafter, "C.!."), a confidential informant working in
DISTRICT
FiLEO/ORIGIHA'-
L. ... w"t;IIICE COUIIITV
2llI2MAY A II: 3i
HELEN I. MORGAS
PRO AND CLERK
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•
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conjunction with the Pennsylvania Office of Attorney General,
on March 2, 2009. At the prearranged meeting, the Defendant
sold 33.5 grams of cocaine to Oscar Williams. The transaction
occurred in New Castle, Lawrence County, Pennsylvania.
The Defendant was ultimately charged with Possession of a
Controlled Substance (35 P . S. §780-113(a) (16)), Possession
with Intent to Deliver a Controlled Substance (35 P.S. §7BO-
113 (a) (30), Delivery of a Controlled Substance (35 P.S.
§780-113 (a) (30»), and Criminal Use of a Communication
Facility (1S Pa.C.S.A. §7512). The Defendant now asserts that
the Commonwealth failed to present sufficient evidence to
establ i sh a prima facie case for the aforementioned charges
filed at both cases.
A preliminary hearing was held on June 18, 2009. The
transcript taken at the preliminary hearing indicates that the
Defendant did not waive his right to the preliminary hearing,
but he stipulated "that the facts that the Commonwealth would
present would be sufficient to prove a prima facie case" of
the charges filed. (N.T. June 18 , 2009, p.2). Based on the
stipulation presented at the preliminary hearing, the
Commonwealth argues that the Defendant has waived his right to
challenge the Commonwealth's evidence by filing a Writ of
Habeas Corpus.
5S .. 0
JUDICIAL
, ,
DISTRICT
FILED/ORIGINA L
LAWIU!NCI! COUNTY
'I:NN5"'-VANIA AlI ' 3f
HELE N I. MORGAI,
P,1lG.AND. CLERK
,
•
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The Defendant asserts that he did not waive his right to
file a Writ of Habeas Corpus, and he argues that there is
insufficient evidence to establish that he waived his right to
file a Writ of Habeas Corpus knowingly and intelligently.
It is well settled that a petition for a writ of habeas
corpus is the proper means for testing a pre-trial finding
that the Commonwealth has sufficient evidence to establish a
prima facie case. A pre-trial petition for a writ of habeas
corpus, therefore, is similar in purpose to a preliminary
hearing. Commonwealth v. Morman, 541 A.2d 356, 359 (Fa. Super.
1988). The burden is on the Commonwea l th to establish at
least a prima facie case that a crim has been committed and
e
the accused is the person who committed the specified crime.
rd.
When a defendant fails to challenge the Commonwealth's
evidence at a preliminary hearing or stipulates to the
sufficiency of the evidence that would otherwise be presented,
the defendant cannot la t er challenge the Commonwealth's
evidence by filing a Writ of Habeas Corpus. Commonwealth v.
Wilk i ns, No. 1180 of 2004, CR. (Law.Co . Com.Pleas
11/4/2005) (affirming Commonwealth v. Carbone, No. 1055 of
2000, CR (Law.Co.Com.Pleas 4/ 19/2001). Defendant's Petition
!litO for Writ of Habeas Corpus is therefore denied.
JUDIC I A.L,.
D I STR I C T
"
FILED/ O IGINAL
R
'-A"'RENCE COUNTY
I'IlNNSVI.VAN,A A II: 31
HELEN I. HORGAN
PRO AND CLERK
•
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The Defendant next asserts that the Commonwealth failed
to comply with the Pennsylvania Wiretapping and Electronic
Surveillance Act, 18 Pa.C.S.A. §5704, in that the intercepted
conversations between the Defendant and the C.I. were not
consented to by either party. The Commonwealth contests the
Defendant's assertion by submitting a letter to defense
counsel that establishes that the prosecuting officer,
Attorney Ricketts, did approve the wiretap. See Commw.'s
Exhibit #1. The Commonwealth also submitted a Memorandum of
Consent, which was executed by the C.I. thereby authorizing
interceptions of phone conversations with the Defendant from
February 2, 2009 through March 27, 2009. See Commw.'s Exhibit
Section 5704 of the Pennsylvania Wiretapping and
Electronic Surveillance Act creates a list of exceptions to
communications that are otherwise barred from intercept i on .
The applicable exception to this case provides as follows:
It shall not be unlawful and no prior court approval
shall be required under this chapter for:
(2) Any investigative or law enforcement officer or
any person acting at the direction or request of an
invest i gative or law enforcement officer to
intercept a wire, electronic or oral communication
invol ving suspected criminal acti vi ties ...where:
(ii) one of the parties to the communication
5l .. D
has g i ven prior consent to such interception.
JUDICIAL However, no interception under this paragraph
DIST RICT
shall be made unless the Attorney General or a
COUNTY
I'£NN$Yl.\IAH , A
4
•
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deputy attorney general designated in writing
by the Attorney General ... of the county wherein
the interception is to be made, has reviewed
the facts and is satisfied that the consent is
voluntary and has given prior approval for the
interception r. J
18 Pa.C.S.A. § 5704(21 (iii.
This Court must recognize that the United States District
Court previously determined that the 18 Pa.C.S.A. §
5704 (2) (ii) is preempted by the Federal Wiretap Act, 18
U.S.C.A. §2516. See Bansal v. Russ, 513 F. Supp. 2d 264 (E .D .
Pa. 2007) (holding that Federal law does not require law
enforcement officers to obtain the approval of the State
Attorney General or a District Attorney when conducting a
wiretap without a warrant where one party has consented to be
recorded) .
Regardless of the Bansal Court's decision, this Court
finds that the Commonwealth has properly complied with §5704
by providing evidence of the C.I.'s consent to the
interception as as the Deputy Attorney General's
authorization of consent. The Defendant's Motion to Suppress
is therefore denied.
The final issue before the Court for a determination is
the Defendant's Motion to Compel Discovery. In his motion,
the Defendant requests this Court to compel the Commonwealth
.. o
JUDICIAL to provide the contract entered into by the C.I. with the
DISTRICT
I.. ... WJlIENCIE COUNTY
rIENNSY .. .., ... N ....
5
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Office of Attorney General, the Bureau of Narcotics
Investigation's (hereinafter, the "BNI") internal operating
agreement, and internal documents identifying protocol
exercised by the BNI concerning the employment of confidential
informants in general. The Defendant asserts that the
requested items may establish bias or motive by the C.l. to
testify against the Defendant and that these items are
necessary in preparation for cross-examination of the c,r.
The Pennsylvania Rules of Criminal Procedure, Rule 573
provides the Court with discretion to order the production of
any evidence "material to the preparation of the defense," as
long as the request is reasonable. Pa.R.Crim.P. 573(B) (2) (a).
Evidence is material to the preparation of the defense if
there is a reasonable possibility that the information sought
will materially aid the defendant in presenting his defense
and is not obtainable from another source. Commonwealth v.
King, 932 A.2d 948, (Pa.Super. 2007). Rule 573 goes on to
pennit discovery of "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).
When the requested information pertains to the credibility and
S3RO motive of a testifying witness, the Defendant must demonstrate
JUDICIAL
DISTR ICT
that the reliability of the witness may well be determinative
LAWRENCE COUNTY
P[HNSVL\lAI'fIA
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•
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of defendant's guilt or innocence. Commonwealth v. Marinelli,
810 A.2d 1257 (Pa. 2002).
In disposing of Defendant's motion, the Court considers
the fact that the C.I. will be a vital witness to the
Commonwealth's case-in-chief. Information regarding any bias
or motive for testifying against the Defendant can be a
determinative factor in the jury's choice to accept or reject
the C.I.'s testimony as truthful. For this reason, the Court
orders the Commonwealth to provide the Defendant with the
contract entered into by the C.I. with the Office of Attorney
General.
With respect to the Defendant's request for the BNI's
internal operating agreement and internal documents
identifying protocol exercised by the BNI concerning the
employment of confidential informants in general, the Court
cannot make the same determination regarding their necessity
to the Oefendant's case.
Consistent with t his Opinion, the Court will enter the
following Order of Court:
51t1!)
JUDICIAL
DISTRICT
LAWAUoICE COUNTY
7
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TRANSIIISSIC>< VERIFICATIC>< REPOOT
TIME 65/64/2612 11:51
NAI'E
FAX 7246562479
TEL 7246562479
SER.* BRDL9J990S45
DATE, TIME 65/64 II: 56
FAX t-D./NAME u.se>< B
021:e1:11
PAGE(S) 69
RESlLT (](
""DE STANDARD
Eo<
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF ::OMMON PLEAS
VS. LAWRENCE COUNTY, PENNSYLVANIA
WALTER MOORE, III, a/k/a NO. 692 OF 2009, CR.
WALTER KEVIN MOORE, III
: OTN: K894083-1
OReD OF cotlIlT
AND NOW, this 4th day of May, 2012, thie case being before
the Court on April 25, 2012 regarding the Oefencant's Petition
for Writ of Habeas Corpus, with Deputy Attorney General
M. Ricketts, Esquire, appearing and rerresenting the
commonwealth of Pennsylvania, and with Bradley (I. Olson, Jr.,
Esquire, appearing and representing the Oefendallt, Walter
Moora, III, and after completing a thorough rev:.ew of the
Preliminary Hearing Transcript a.nd applicable the
court finds, and it is hereoy ORDERKD and as follows:
1. Tl;le Petition for Writ of rlabeas Corpus
Circulated 08/27/2014 03:40 PM
COMMONWEALTH OF
• •
IN THE COURT OF COMMON PLEAS
PENNSYLVANIA,
LAWRENCE COUNTY, PENNSYLVANIA
VS.
NO. 692 of 2009, C.R.
WALTER KEVIN MOORE, III,
OTN: K894083-1
Defendant
APPEARANCES
FOR THE COMMONWEALTH: Maureen Sheehan-Balchon, Esquire
Deputy Attorney General
Drug Strike Force Section
105 Independence Blvd.
Butler, PA 16001
FOR THE DEFENDANT: Bradley Olson, Esquire
312 North Jefferson Street
2nd Floor
New Castle, PA 16101
OPINION
Piccione, J. April 25, 2013
Before the Court for disposition is Defendanfs Post Verdict Motion, which
consists of a Motion in Arrest of Judgment, a Motion for a New Trial, and a Motion to
Modify Sentence (hereinafter, collectively the "Motion" or "Post Verdict Motion"). The
Defendant, Walter Kevin Moore, HI (hereinafter, the "Defendant"), argues this Court
should arrest the judgment against him or grant the Defendant a new trial because (1)
there was insufficient evidence to sustain his conviction , (2) his conviction was against
the weight of the evidence presented, and (3) he was denied rights granted to him.
Defendant requests this Court enter an Order to arrest the judgment entered against
him or, in the alternative, grant the Defendant a new trial. Additionally, the Defendant
:5lrtD
JUCIC'''L requests this Court modify and reconsider the Defendant's sentence because he was
DISTRICT
FIL cO/OQ, :'G' I"r -__
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.. EN ... S .. LV" .... " 2013 APR 25 ;:J 12' 05
HELEN I. MORGAH
no ANOCLERK
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• •
allegedly improperly sentenced pursuant to the mandatory term of imprisonment. For
the reasons set forth below. the Defendant's requests are denied.
Following a three-day jury trial, the Defendant was convicted of Possession of a
Controlled Substance pursuant to 35 P.S. § 780-113(a)(16), Possession with the Intent
to Deliver a Controlled Substance pursuant to 35 P.S. § 780-113(a)(30), Delivery of a
Controlled Substance pursuant to 35 P. S. § 780-113(a)(30), and Criminal Use of a
Communication Facility pursuant to 18 Pa.C.S.A. § 7512. The Defendant was
thereafter sentenced by this Court on November 16, 2012 to an aggregate of not less
than five (5) years nor more than ten (10) years of incarceration in a state criminal
facility. This sentence was the result, inter alia, of this Court's of the
mandatory minimum sentence for the Defendant's conviction on the charge of Deliyery
of a Controlled Substance pursuant to 18 Pa.C.S.A. § 7508. On November 26, 2012,
the Defendant filed the instant Motion. A hearing was held in this Court on the Motion
on March 28, 2013.
A challenge to the sufficiency of the evidence will be reviewed under the
following standard:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in light most
favorable to the verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime beyond a
reasonable doubt. In applying [the above) test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guin may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
S)"" drawn from the combined circumstances. The Commonwealth may
JUDICIAL. sustain burden of proving every element of the crime beyond a
DISTRICT
reasonable doubt by means of wholly circumstantial evidence.
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.. STL"A"' .....
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• •
Moreover, in applying the above test, the entire record must be
evaluated and all evidence actually received must be considered.
Finally, the [finder! of fact while passing upon the credibility of
witness and weight of the evidence produced, is free to believe all,
part or none of the evidence.
Com v. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011) (cning Comm. v. Jones, 874
A.2d 108, 120-21 (Pa. Super, 2005).
In reviewing the evidence in the light most favorable to the Commonwealth,
there is sufficient evidence to sustain the guiny verdict on the above charges. On or
about March 2, 2009, under the supervision of Agent Jason Hammerman' (hereinafter,
"Agent Hammerman") and the Pennsylvania Office of the Attomey General, a
confidential informant (hereinafter, a "CI") performed a controlled purchase from the
Defendant, which yielded a substance that tested pasnive for cocaine. Agent
Hammerman became familiar with the CI in August 2008. A controlled purchase was
executed upon the CI shortly after the CI moved to Lawrence County from Mississippi.
Additionally, On November 5, 2008, the CI was arrested by the New Castle Police
Department in a high drug trafficking area, after which time the CI entered into a
confidential informant agreement with the Office of the Attorney General. Agent
Hammerman testified during the trial that he became aware of the Defendant from
information provided by the CI. The CI testified that he was testifying in the instant
case as a result of his plea negotiation related to the November 5, 2008 arrest. Based
upon information provided by the CI, Agent Hammerman began to investigate the
Oefendant and became familiar with his looks, his vehicles, and the areas in which he
lived and frequented.
URI)
JUDICIAL.
DISTRICT
\ Agent Jason Hammerman is a special agent with the Drug Enforcement Agency.
..... WR .. .. C£ COU"TY
3
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•
•
Agent Hammerman testified that on February 27, 2009 the cr attempted to
make contact with the Defendant by dialing his cell phone number, but was unable to
reach him. On March 2, 2009, the CI met Agent Hammerman at approximately 2:39
P.M. and the CI began attempting to contact the Defendant. The cr was released at
3:30 P.M., after he was unable to reach the Defendant. Agent Hammerman informed
the CI that he would be in the area until approximately 5:00 P.M., and the CI was
instructed to contact Agent Hammerman if he was able to get in contact with the
Defendant. No surveillance was conducted on the CI or his phone after the CI left !he
presence of the agents. Thereafter, at 4:45 P.M. the CI contacted Agent Hammerman
and advised him that he made contact with the Defendant. The CI informed Agent
Hammerman that the Defendant contacted him via text message and had arranged a
deal for one and one quarter (1 .25) ounces of crack cocaine in exchange for
$1 ,500.00.
Agent Hammerman picked up the CI and took him to an area on Croton Avenue
and effectively conducted a strip search on the CI to ensure he did not have any U.S.
currency, drugs, paraphernalia, or weapons on his person. Nothing was located on
the cr. After completing !he search, Agent Hammerman instructed the CI to make a
consensually recorded phone call to the Defendant at 724-614-9399, which was the
number provided by the cr. This phone call was ultimately recorded by the
Commonwealth and played for !he jury during the trial. During the call, the CI asked
the Defendant where he was and the Defendant responded that he was around !he
comer. The CI informed Agent Hammerman that the Defendant would probably be in
5''' 0
JUDI C IAL the area of Ray Street and Elder Street in New Castle, Pennsylvania. Agent
D I S TRI C T
LAw .. " .. cr CO UNT Y
4
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•
• •
Hammerman testified that he recognized the voice as the Defendant's voice. As a
result, Agent Hammerman dispatched surveillance agents to the area of Ray Street
and Elder Street; he and the CI also drove to the area at approximately 5:00 P.M. The
CI was then provided with $1,500.00 of prerecorded funds, and he was dropped off on
Ray Street, just before Ash Street. On this particular night, it was approximately 15
degrees, without precipitation, but WITh lingering snow on the ground.
Agent Hammerman testified that he was assisted by Special Agent Geraci,
Corporal Lagnese, Chief Salem, and James Paglia'. Agent Geraci was in the vehicle
with Agent Hammerman, and Agent Hammerman had an open telephone line with
Corporal Lagnese. Agent Hammerman remained stationary in his vehicle while he
viewed the CI walk onto Ray Street. While the CI was walking, Agent Hammerman
informed Corporal Lagnese he was going to turn off Ray Street onto Elder Street,
thereafter traveling eastbound. On the north side of Elder Street, Agent Hammerman
viewed a burgundy Cadillac Escalade pickup truck (hereinafter, the "Escalade") in the
opening of an alleyway. Agent Hammerman recognized the vehicle to be the
Defendant's and observed the Defendant in the driver's seat. Agent Hammerman
testified that he could see through the windshield when he identified the Defendant
and noted that there were no other individuals in the vehicle. When Agent
Hammerman's vehicle passed the Escalade, it started to move westbound. Agent
Hammerman then turned south onto Scott Street then to a stationary position until the
transaction was terminated.
2Special Agent Geraci is a special agent with the Drug Enforcement Agency; Corporal Anthony Nick
5, .. D
JUOrCIAL
Lagnese is a corporal employed by the City of New Castle Police Department; Chief Robert Salem is the
OISTRICT ChIef of the City of New Castle Police Department; and James Paglia is an officer employed by the City
of New Castle Police Department. These individuals were involved in a jOint narcotics investigation in
the City of New Castle, in Lawrence County during the instanl time period.
LAW .. IEN"'" CDuNT"
.. ENN5YLV ..... ' ...
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•
• •
Subsequently, Agent Hammerman viewed the Escalade tum from Ray Street
onto Ash Street and it began driving towards Agent Hammerman's vehicle on Sectt
Street. Agent Hammerman observed the Defendant driving the Escalade with only the
CI in the passenger seat until it turned northbound on Sectt Street. Agent
Hammerman began traveling southbound on Sectt Street and Agent Hammerman
continued observing from the rearview mirror. Agent Hammerman saw the Escalade
tum onto Elder Street, at which point Agent Hammerman lost sight of the vehicle as he
continued driving straight on Scott Street.
Corporal Lagnese was ecnducting physical surveillance in an unmarked vehicle
located on Ray Street. He witnessed Agent Hammerman drop off the Clan Ray
Street. He observed the CI continue to walk north on Ray Street to the interserction of
Ray Street and Elder Street. At that intersection, Corporal Lagnese witnessed the CI
enter into the Escalade. Corporal Lagnese did not see the CI make any contact with
any other person or make any stops. Corporal Lagnese observed the Escalade tum
south bound onto Ray Street towards Corporal Lagnese's vehicle. When the Escalade
passed Corporal Lagnese's vehicle, Corporal Lagnese identified the Defendant as the
operator of the vehicle, and the CI was sitting in the front passenger street. Corporal
Lagnese then observed the Escalade make a left-hand turn onto Ash Street at which
time Corporal Lagnese began to follow the Escalade. Agent Hammerman advised
Corporal Lagnese that the Escalade turned lett onto Scott Street; and Corporal
Lagnese parked his vehicle close to the intersection of Ash Street and Scott Street and
lost sight of the Escalade. Agent Hammerman then advised Corporal Lagnese that the
5311' D
JUOICIAL. Escalade turned back onto Elder Street. Corporallagnese then witnessed the CI tum
OISTRICT
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6
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• •
from Elder Street on foot and walk onto Scott Street directly back to Corporel
Lagnese's vehicle. The CI got into Corporal Lagnese's vehicle and handed Corporal
Lagnese a bag containing suspected crack cocaine.
Corporal Lagnese then called Agent Hammemnan and advised him the CI was
in custody in his vehicle, and the CI provided drugs to Corporal lagnese. Agent
Hammemnan testified that while he was conducting surveillance of the CI and the
Defendant, he did not see any other individuals around the city block either on foot or
in a vehicle. Additionally, he did not see the Defendant's car stop at any other
location, nor did he see the CI make contact with any other person.
Agent Hammemnan testified that after discussing the transaction with the other
agents, there was a "negligible" period of time, several seconds, during which the CI
was not under surveillance. Although Agent Hammerman testified that it is possible
that there was enough time for a person to walk casually, bent over, pick something off
the ground, and then continue to walk; however, this CI is a large individual, in excess
of 300 pounds, who walks slowly. If the CI were to bend over and pick something up
from the ground, it would have been a very obvious gesture.
After being advised that the CI was in the custody of Corporal Lagnese, Agent
Hammemnan met with Corporal Lagnese and the CI at predetemnined location. Upon
arrival, Corporal lagnese handed Agent Hammemnan a package of what was later
detemnined to be crack cocaine'. The package contained five separate bags of the
crack cocaine. During the trial, the CI identified the package containing five separate
1 The Commonwealth and the Defendant agreed to the following stipulation that was read to the jury by
53 .. 0
JUDICIAL
this Court: "The drug evidence was properly handled during chain of custody, subject to proper testing
DISTRICT procedures at the Pennsylvania State Police Crime Lab, drug evidence tested positive for cocaIne base,
a Schedule II controlled substance and the five bags had a total weight of 33.5 grams." (T.T. Day 2, pg.
8).
LAWRENCE COUNTY
7
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•
• •
bags therein was indeed the crack cocaine that the Defendant had given to him in
exchange for $1,500.00 on May 2,2009. Agent Hammerman then conducted another
strip search of the CI which yielded no additional controlled substances, US currency,
paraphernalia or weapons. Thereafter, the CI was debriefed by the above agents.
Agent Hammerman made the following determinations based upon conversations
the other surveillance agents and the CI: the team was able to maintain surveillance
upon the CI; the CI met with the Defendant in the Defendant's vehicle; the Defendant
and the CI drove around the block; a transaction occurred for $1,500.00 in exchange
for one and one quarter ounces of crack cocaine; the CI did nol meet with anyone else;
the CI exited the Defendant's vehicle then met with Corporal Lagnese, who brought the
CI to the meeting location.
The CI testified at trial regarding his involvement in the controlled purchase of
crack cocaine from the Defendant. He testified that on March 2, 2009, he attempted to
make contact with the Defendant early in the day in the presence of Agent
Hammerman. After several unsuccessful attempts, the CI returned to his home on
Cleveland Street in New Caslle, Pennsylvania. While at home, the CI received a text
message from the Defendant. While in the Escalade the Defendant, the CI
testified that he gave the Defendant the money provided to him by Agent Hammerman,
and the Defendant gave the CI the drugs. The CI testified that there were no other
individuals in the vehicle, and the entire transaction took approximately four to five
minutes. The Defendant dropped the CI off where he had initially gotten into the
Defendant's vehicle on Ray Street. The CI then got into Corporal Lagnese's vehicle
.. o
JUDICIAL after walking up the street. The CI testified that he did not see anyone else on the
DISTRICT
L A WRI!:N<;i COUNYV
",. ...... "L" ... N' ...
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• •
street while he was walking to Corporal Lagnese's vehicle, he did not have contact with
anyone on the street, nor did he ever stop to pick up anything from the street.
Once inside Corporal Lagnese's vehicle, the CI gave Corporal Lagnese the
drugs he received from the Defendant. Corporal Lagnese then took the CI to another
location where his clothing and body were searched again. Shortly thereafter, the CI
received a call on his phone from the Defendant asking the CI if the drugs were all
right. The CI told the Defendant that everything was fine, and he ended the call.
Agent Hammenman testified that normally an infonmant provides his own written
statement, but the CI in the instant matter does not read or wrtte the English language
well so the CI commun icated his statement to Agent Hammenman and Agent Geraci
during the meeting after the transaction with the Defendant, and the statements were
then transcribed. Both agents created the statement contemporaneously. The CI was
able to print his name at the bottom of the statement. After identifying the statement at
tria l, the CI indicated that was the statement he provided to Agent Hammenman; and
the CI signed the statement after Agent Hammenman read it back to him.
Agent Hammenman also testified regarding the lack of recording surveillance
used in the transaction. Agent Hammenman testified that he had been using a key fob
for a vehicle as a recording device, but infonmation had leaked regarding what type of
device the agents had used. Addttionally, the CI did not have a vehicle that day, so
Agent Hammenman thought it would look suspicious for the CI to have a key fob
hanging off his person. Addttionally, an audio and video recording device could have
been placed upon the CI, but Agent Hammenman testified that he was concerned that tt
"lor o
JUOI C IAL
would have been spotted. Agent Hammenman also testified that in the past, Chief
ICT
I.. ... W.,O:Nc:O: C: OuNT "
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• •
Salem would carry a camera while on the street and take pictures, but since he works
within the City of New Castle, many people know him. Agent Hammerman was afraid
that having Chief Salem take pictures could compromise the operation.
Several months after this controlled purchase, in approximately May 2009, the
agents working this case conducted a "round up," during which all individuals were
arrested. A press release was issued and photographs were published of the
individuals that were arrested in the case. The CI was included in the round up, so
Agent Hammerman did not utilize him to make any other purchase; however, he did
periodically keep in contact with the CI. In exchange for the CI's cooperation in this
transaction, he was subject to a $30 ,000.00 non-monetary bond at the time of his
arraignment for the charges from an investigation by Agent Hammerman.
This non-monetary bond is favorable to those in the same circumstances as the CI.
The CI was later arrested on February 4, 2011 after a search warrant was executed on
his property that recovered crack cocaine, $7,000.00 in cash, scales and baggies,
assault rifle ammunition, and prescription medication not prescribed to him; however,
Agent Hammerman was personally unaware of this. The CI testified that following the
search warrant he fied the Commonwealth and went to Mississippi. After being
arrested again, the CI testified that he negotiated a plea agreement that if he testified
against the Defendant in the instant case, he would get a favorable plea offer from the
Commonwealth.
The Defendanfs first assertion in his Post Verdict Motion is tlhat the
of Pennsylvania failed to introduce sufficient evidence to establish the
'3RO
JUDICI .... L material elements of the crimes beyond a reasonable doubt. The Defendant points to a
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I.AWII[;NCIt eOI,lN,.y
"ENN5 Y l.VAN'A
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• •
number of matters the Commonwealth was unable to pralle beyond a reasonable
doubt. As stated above, the Defendant was convicted of Possession of a Controlled
Substance pursuant to 35 P.S. § 780-113(a)(16), Possession with the Intent to Deliver
a Controlled Substance pursuant to 35 P.S. § 780:113(a)(30), Delivery of a Controlled
Substance pursuant to 35 P.S. § 780-113(a)(30), and Criminal Use of a
Communication Facility pursuant to 18 Pa.C.S.A. § 7512.
sustain a conviction for the crime of possession of a controlled substance,
the Commonwealth must prove that [the defendant] knowingly or intentionally
possessed a controlled substance without being properly registered to do so under the
Acl." Comm. v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012). The Defendant was also
charged with posseSSion of a controlled SUbstance with the intent to deliver; since no
hand to hand transaction was observed, the Commonwealth must additionally prove
"that [the defendant] possessed the controlled substance with the intent to
manufacture, distribute, or delivery il." !Q.. Since the Defendant was not found with
crack cocaine on his person, the Commonwealth was required to establish that the
Defendant had constructive possession of the crack cocaine. See Comm. v. Kirkland,
831 A.2d 607, 611 (Pa. Super. 2003).
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of crimina l law
enforcement. Constructive possession is an inference
arising from a set of facts that posseSSion of the contraband
was more likely than nol. We have defined constructive
possession as "conscious dominion." We subsequently
defined "conscious dominion" as "the power to control the
contraband and the intent to exercise that control. " To aid
application, we have held that constructive possession may
S)"I;I be established by the totality of the circumstances.'
JUDICIAL.
CIISTA IC T
Comm. v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal citations omitted).
"""""" CNell el;l uNT'I
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• •
Here, the Defendant challenges the Commonwealth's ability to prove the
Defendant had construction possession of the crack cocaine. The Defendant argues
this by pointing to the following concessions by the Commonwealth's wrtnesses: (1)
neither Agent Hammenman nor Corporal Lagnese saw the Defendant possess any
controlled substance; (2) no officer could observed the CI enter the Defendant's
Escalade; (3) no officer observed a hand-to-hand transaction between the CI and the
Defendant; (4) Corporal Lagnese did not witness when or where the CI exited the
Defendant's Escalade; and (5) there is no forensic evidence on the bag containing the
crack cocaine to establish that the Defendant had possession of the contraband.
However, after review of the entire testimony, this Court finds that the Commonwealth
provided sufficient evidence to support the Defendant's convictions.
The Commonwealth presented evidence to establish that on March 2, 2009, the
Defendant made contact wrth the CI by text message via a cellular telephone to
organize a drug deal. The CI arranged wrth the Defendant that he was going to
purchase one and one quarter ounces of crack cocaine from the Defendant in exchange
for $1 ,500.00. The CI was strip searched prior to meeting wrth the Defendant, and no
drugs, contraband, currency, or paraphernalia were found on his person. The CI was
then provided with $1 ,500.00 and Agent Hammenman dropped the CI off at the meeting
location. The CI was observed walking up the street, then in the car with the Defendant.
No other individuals were seen in the car with the Defendant and the CI. The CI was
then observed on foot turning a cornering, and he walked directly into Corporal
S3AO Lagnese's vehicle. Once in Corporal Lagnese's custody, the CI handed Corproal
J U DICIAL.
DIS TRI C T
Lagnese one and one quarter ounces of crack cocaine separated into five smaller bags,
.......... "'NC" COUNT ...
.. H' ...
12
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• •
which were given to him by the Defendant in exchange for $1 ,500.00. The CI was once
again strip searched and no other drugs, contraband, currency, or paraphernalia were
found on his person. The Defendant called the CI minutes later to confirm the CI was
satisfied with the transaction. the CI was not continuously observed for the
entire transaction, the officers reasonably concluded the time during which they lost
surveillance was negligible. Under the totality of the circumstances, the
sufficiently proved Ihe Defendant had constructive possession of the crack cocaine.
Additionally, the Defendant was convicted of possession of a controlled
substance with the intent to deliver pursuanllo 35 P.S. § 780-113(a)(30). "The crime of
possession of a controlled substance wilh the intent to deliver requires the
Commonwealth to prove an additional element: that [the defendanl] possessed the
conlrolled substance with the intent to manufacture, distribute, or deliver it." Comm. v.
Brown, 48 A.2d 426, 430 (Pa. Super. 2012). In order to prove a defendant had the
intent 10 deliver, "[t]he trier of fact may infer that the defendant intended to deliver a
controlled substance from an examination of the facts and circumstances surrounding
the case." Kirkland, 831 A.2d al 611 . The Superior Court explained, "[f)aetors to
consider in determining whether the drugs were possessed with the intent to deliver
include the particular melhod of packaging, the form of the drug, and Ihe behavior of the
defendant." !Q"
In the instant case, the Commonwealth established thai the Defendant
constructively possessed one and one quarter ounces of crack cocaine with the intent to
deliver. The Defendant organized an eXChange with the CI al a specific location. The
JUDICIAL.
DISTRI C T
Defendant in his Escalade picked up the CI, who was on foot. The Defendant and the
I..,.WRItNCI: CDU"TV
... 1: .... S Vl,.v .... , ..
13
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• •
CI alone drove around a block, and the Defendant dropped off at CI approximately at
the same location he was picked up. The crack cocaine was transferred to the CI in
one large plastic bag with five smaller plastic bags containing approximately equal
amounts contained in the large bag in exchange for $1,500.00. The transaclion did not
occur in open, but was seemingly concealed while driving alone in the Defendant's
vehicle. Addttionally, the Defendant called the CI after the transaction to ensure the CI
was satisfied with the crack cocaine. This evidence is sufficient to show that the
Defendant exercised conscious dominion over the crack cocaine.
The Defendant was also convicted of delivery of a controlled substance pursuant
to 35 P.S. § 780-113(a)(30). Under this subsection, tt is unlawful for a defendant to
manufacture or deliver a controlled substance by a person not registered to do so.
"Delivery" is defined as "the actual, constructive or attempted transfer from one person
to another of a controlled substance." 35 P.S. § 780-112. "Transfer is not defined in the
Act; however, taking the commonly accepted meaning of the word, as we must ... IT
means 'rt]o conveyor remove from one ... person to anotherf']" Comm. v, Cameron,
372 A.2d 904 (Pa. Super. 1977). Thus, "all that is necessary is that the transfer be
between two people." Comm. v. Metzger, 372 A.2d 20, 22 (Pa. Super. 1977).
In the instant case, the Commonwealth presented evidence that the CI
participated in a controlled purchase of crack cocaine from the Defendant. The CI was
strip searched immediately before the transaclion and given $1 ,500.00. The CI met
only with the Defendant in the Defendant's vehicle. The CI was under surveillance for
the entire time, but for a negligible few moments. Immediately after exiting the
SlRt:)
JUDICI"'L Defendant's vehicle, the CI told Corporal Lagnese that he purchased the crack cocaine
DISTRICT
LA",R E "'CE COUNT V
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• •
from the Defendant in exchange for $1,500.00. The CI also testified to the same. As
stated above, the Commonwealth need only to prove that a defendant actually
transferred a drug to another. Considering the totality of the evidence provided by the
Commonwealth, the Commonwealth sufficient proved the Defendant transferred crack
cocaine to the CI. As a result, the Commonwealth provided sufficient evidence to
establish the Defendant is guilty of delivery of a controlled sUbstance.
The Defendant was lastly convicted of criminal use of a communication facility
pursuant to 18 Pa.C.SA § 7512. The Superior Court in Comm. v. Moss, 852 A.2d 374,
381 (Pa. Super. 2004), explained, "fnhe Commonwealth must prove beyond a
reasonable doubt that: (1) [defendant) knowingly and intentionally used a
communication facility; (2) [defendant) knowingly, intentionally or recklessly facilitated
an underlying felony; and (3) the underlying felony has occurred." The pertinent inquiry
is not to determine if a defendant used a communication device but to determine if he
I
used that communication device to facilitate the underlying felonies. &
In the instant case, the Commonwealth has provided sufficient evidence to
establish that the Defendant knowingly and intentionally used a communication facility,
a telephone, to facilitate the underlying felonies above. First, the record reflects that the
Defendant set up the drug transaction via a text message, wihich the CI reported to
Agent Hammerman immediately thereafter. Next, the CI informed the Defendant via
telephone that he was "around the comer" before the Defendant picked the CI up in his
vehicle. Following the transaction, the Defendant made a telephone call to tlhe CI to
ensure the CI was satisfied with the drugs. As a result of these facts, the Defendant set
51AD
JUDI C 'AL. up the drug transaction with the CI via a communication device, a telephone. The CI
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15
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• •
informed the Defendant of his location via a telephone call. And following the
transaction, the Defendant used the communication facility to ensure the sale was
satisfactory. This evidence, viewed in the light most favorable to the Commonwealth , is
sufficient to support the conviction of the Defendant of criminal use of a communication
facility.
Based upon the above, the Commonweatth provided sufficient evidence to prove
every element of the crimes of which the Defendant was convicted . The Defendant is
therefore not entitled to a new tria l on this basis.
Next, the Defendant argues the instant Motion that his convictions were against
the weight of the evidence. "The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses' Commonwealth v. Lewis, 911 A.2d 558, 565 (Pa. Super.
2006). "A motion for new trial on the grounds that the verdict is contrary to the weight
of the evidence, concedes that there is sufficient evidence to sustain the verdict: !Q.
Such a challenge questions which evidence is to be believed. !Q. (citing
Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005)). For the reasons set
forth below, this Court finds the evidence presented by the Commonwealth to be
credible and trustworthy; as a result, the verdict was not against the weight of the
evidence presented.
The Defendant argues the verdict is against the weight of the evidence because
(1) no police officer witnessed a hand-te-hand transaction of the crack cocaine from the
Defendant to the CI ; (2) the CI's testimony was not credible because of his criminal
$3" 0
JUDICI A L history; (3) the CI was not credible because he was unable to remember numerous
DI STR le T
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"" "'N S Y LV ANI A
16
• •
facts during cross-examination; and (4) the CI's testimony that incriminated the
Defendant was the result of the Commonwealth's leading questions. First, no
hand-to-hand transfer of drugs was witnessed between the Defendant and the CI, the
Commonwealth is permitted to prove the entirety of its case against the Defendant with
circumstantial evidence. See Comm. v, Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012),
As stated above, the Commonwealth presented sufficient evidence to support the
Defendant's convictions; the trier of fact is free to believe all or none of such evidence
to determine credibility. It is inconsequential that the officers did not observe a hand-
to-hand transfer of the crack cocaine; the Commonwealth is permitted to prove every
element of a crime by means of wholly circumstantial evidence, The jury was tree to
believe that circumstantial evidence.
Next, the Defendant argues that the testimony of the CI was not credible or
trustworthy due to his criminal history. During the trial, the CI was extensively
questioned regarding his criminal history and previous charges, Additionally, the jury
was provided with testimony that the CI became involved with the Office of the Attorney
General of Pennsylvania following an arrest. The jury was permitted to weigh such
evidence against his testimony. It is within the discretion of the jury to believe any or all
of the Cl's testimony,
The Defendant also asserts that the CI was not credible because he failed to
remember facts about which he was questioned, The Defendant argues that because
the CI was unable to recall certain facts, "to give any credit to the Cl's testimony
regarding the events of a single night approximately three and yeas earlier
53RD
JUDICIAL does not merely shock one's sense of justice, it shocks one's sense of basic human
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L AWRI:NCE COUNT"
17
•
intelligence." Def. Brief, pg. 5.
•
"Questions concerning inconsistent testimony and
improper motive go to the credibility of the witness. " Comm. v. DeJesus, 860 A.2d 102,
107 (Pa. 2004). "lWlhere evidence offered to support a verdict of guilt is so unreliable
andlor contrad ictory as to make any verdict based thereon pure conjecture, a jury may
not be permitted to return such a finding .' Comm. v. Farquharson, 354 A.2d 545 (Pa.
1976).
Here, the testimony of the CI regarding the delivery of crack cocaine and the
testimony of the officers were not contradictory. The Cl's testimony supported the
officers recollection of the events. The CI's testimony was consistent as to all crucial
events surrounding the Defendant's charges. As such, the resulting verdict cannot be
said to be pure conjecture. The jury was tree to weight and reject the questions of trial
counsel regarding the CI's credibility. As a resutt, the jury's credibility determination will
not be disturbed.
Lastly, the Defendant argues that the verdict was against the weight of the
evidence because the CI's testimony that incriminated the Defendant was the result of
the Commonwealth's leading questions. The Supreme Court of Pennsylvania
explained in Comm. v. Reed, 990 A.2d 1158, 1170 (Pa. 2010), "[T]rial courts maintain
discretionary control over the questioning of witnesses[.] Questions calling for a 'yes'
or 'no' answer are not necessarily leading; rather, the litmus is the degree of the
suggestiveness contained in the questioning.' (internal citations omitted). Our
Supreme Court defined a leading question as "one which puts the desired answer in
the mouth of the witness." !!L (Citations omitted).
u ,,"
J UDIC I " L
D I ST RI C T
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18
• •
During the CI's direct examination, counsel for the Defendant objected to the
form of the Commonwealth's questions on three occasions. (T.T. Day 2. pgs. 144, 161 ,
168). The first and third times, the Defendant's counsel objected to a series of
questions; and this Court sustained the Defendant's objections. The second time,
Defendant's counsel objected to a single question, which the Commonwealth voluntarily
rephrased. Upon reviewing the direct testimony of the CI, the Commonwealth was
indeed asking leading questions. The Defendant's counsel properly objected, and this
Court properly sustained the objections. The explained to the Court
during a discussion at sidebar that the CI was not sophisticated, and she was trying to
ask open-ended questions. As a result, the Court provided some leeway under the
circumstances. See Comm. v. Deitrick, 70 A. 275 (Pa. 1908) ("The rule that a party
calling a witness is not permitted to ask leading questions ". is [to be] liberally
construed in modern practice, with a large measure of discretion in the court to permit
parties to elicit any material truth without regard to the technica l considerations of who
called the witness.") . The Court did not find prejudice to the Defendant as a result of the
Commonweaith's leading the CI. Moreover, there was sufficient evidence already on
the record regarding the circumstances of the controlled purchase on the Defendant.
Therefore, the verdict was not against the weight of the evidence presented; and the
Defendant is not entitled to a new trial on this basis.
The Defendant next asserts in the instant Motion that the Commonwealth
violated Brady v. Maryland, 83 S.C!. 1194 (1963), in the following ways: (1) failing to
disclose the Office of the Attorney General's internal protocol regarding the use of
53 .. 0
JUDICIA L. confidential informants; (2) failing to deliver the grand jury testimony of Agent
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, "€N,,5..- .. VAN , A
19
• •
Hammerman at the conclusion of direct examination; (3) destroying andlor disposing of
all of Agent Hammerman's handwritten material that he drafted during the course of the
investigation after completing his affidavit of probable cause; and (4) failing to disclose
the location of the strip searches.
In Brady. the United States Supreme Court held that "the suppression by the
prosecution of evidence favorab le to an accused upon request violates due process
where the evidence is material either to guilty or to punishment. irrespective of the good
fatth or bad faith of the prosecution." 83 S.Ct.1194. The Pennsylvania Supreme Court
has held. "To prove a Brady violation. the defendant must show that: (1) the prosecutor
has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is
helpful to the defendant; and (3) the suppression prejudiced the defendant." Comm. v.
Pagan, 950 A.2d 270, 291 (Pa. 2008). "The evidence purportedly suppressed must
have been material to guilt. Evidence is material if there has been a reasonable
probabiltty that. had the evidence been disclosed to the defendant. the result of the
proceeding would have been different." Comm. v. Clark. 961 A.2d 80, 89 (Pa. 2008)
(citations and quotation marks omitted).
MBrady does not require the disclosure of information that is not exculpatory but
might merely form the groundwork for possible arguments nor defenses." Comm. v.
Chamberlain. 30 A.3d 381 (Pa. 2011) (internal quotation marks and citations omitted).
Additionally, "[t)he 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 constttutional sense." Comm. v. McGill, 832 A.2d 1014, 1019 (Pa.
""0
JUD I C IA L 2003). The "question is not whether the defendant would more likely than not have
D I ST RI CT
L"''''RII:N(II: (OUNT'f
.ENNS'fL ...... NI ...
20
• •
received a different verdict with the evidence, but whether in its absence he received a
fair trial , understood as a trial resulting in a verdict worthy of confidence." Comm. v.
Dennis, 17 A.3d 297, 308 (Pa. 2011) (quoting Kyles v. Whitley, 115 S. Ct. 1555 (1995)).
The Defendant argues that the Commonwealth's nondisclosure of the Office of
the Attorney General's internal protoool regarding the use of oonfidential infomnants
constituted a Brady violation. The Defendant asserts the nondisclosure "severely
handicapped" his strategy and deprived him of additional defenses that oould have
affected the outoome of his case, including the Cl's credibility and the validity of the
Commonwealth's investigation. This is merely speculative, however. As stated above,
the mere possibility that an item of undisclosed infomnation might have helped the
defense, or might have affected the outcome of the trial does not establish materiality.
The Commonwealth's nondisclosure of the intemal protocol regarding the use of
confidential informants does not constitute a Brady violation.
The Defendant argues that the Commonweatth's failure to deliver the grand jury
testimony of Agent Hammemnan at the conclusion of direct examination constituted a
Brady violation. The Defendant argues that Agent Hammemnan's grand jury testimony
was of utmost importance since he was one of three testifying witnesses during the trial.
The Defendant asserts that Agent Hammemnan's grand jury testimony oould possibly
contain statements contrary to those made during the trial; and those statements could
be used to diminish Agent Hammemnan's credibility. "Impeachment evidence which
goes to the credibility of a primary witness against the accused is critical evidence and it
material to the case[.]" Comm. v. Spotz, 47 A.3d 63, 84 (Pa. 20(2) (citations omitted).
S)lItD
JUDICIA!,.
This Court agrees that if the Commonwealth had suppressed such evidence, the
D ISTR IC T
I. ... WRF.: .. CE COU NT V
21
• •
Defendant would have an argument for a potential Brady violation. However, after
scrutinizing the record , this Court finds no request for Agent Hammerman's grand jury
testimony. As stated by our Supreme Court in Comm. v. Sneed, 45 A.3d 1096, 1116
(Pa. 2012), "The burden rests with the [defendant] to prove, by reference to the
record, that evidence was withheld or suppressed by the prosecution." (emphasis in
original) (intemal quotation marks and citations omitted). As a result, the Defendant's
assertion of a Brady violation is purely conjecture since he cannot prove the existence
of the allegedly exculpatory evidence, or that such evidence was withheld by the
prosecution. This assertion is insufficient to establish a Brady violation.
The Defendant argues that Agent Hammenman's destruction andlor disposal of
all of his handwritten material that he drafted during the course of the investigation after
completing his affidavit of probable cause constttuted a Brady violation. The Defendant
argues that by making those notes unavailable for defense counsel's inspection, the
Defendant was divested of the opportuntty to utilize potentially invaluable impeachment
evidence. Similar to the above, the record does not refiect that the Defendant requested
Agent Hammerman's handwritten notes. Because the Defendant cannot prove that
such evidence was withheld by the prosecution, this assertion is insufficient to establish
a Brady violation.
In the Defendant's last Brady claim, he argues that the Commonwealth's
nondisclosure of the location where the CI was strip searched constituted a Brady
violation. He asserts that because the Commonwealth's failed to provide defense
counsel with the location of the strip searches, the Defendant was unable to challenge
S3RO
JUOJClAL. the accuracy andlor reliability of the testimony of the CI and Agent Hammenman with
DlSTRICT
L A W"CNC" C OUNTY
22
• •
respect to the searches. The Court does not find the location where the CI was strip
searched to be material of his guilt. The Defendant had a full and fair opportunity to
cross-
JUDICIAL defendant of a fair trial.
DISTR I CT
LA""" £ N C;£ C; OU"'TY
23
• •
A mistrial is an "extreme remedy ... [that] ... must be granted only
when an incident is of such a nature that its unavoidable effect is to
deprive defense of a fair trial.' Comm. v. Vazguez, 412 Pa.Super.
164,617 A.2d 786, 787·88 (1992) (citing Comm. v. Chestnut, 511
Pa. 169, 512 A.2d 603 (Pa. 1986), and Comm. v. Brinkley, 505 Pa.
442, 480 A.2d 980 (Pa. 1964». A trial court may remove taint
caused by improper testimony through curative instructions.
Comm. v. Savage, 529 Pa. 108, 602 A.2d 309, 312·13 (Pa. 1992);
Comm. v. Richardson, 496 Pa. 521,437 A.2d 1162 (Pa. 1981).
Courts must consider all surrounding circumstances before finding
that curative instructions were insufficient and the extreme remedy
of a mistrial is required. Richardson, 496 Pa. at 526-527, 437 A.2d
at 1165. The circumstances which the court must consider include
whether the improper remark was intentionally elicited by the
Commonwealth, whether the answer was responsive to the
question posed, whether the Commonweatth explorted the
reference, and whether the curative instructive was appropriate. &
Comm. v. Manley, 985 A.2d 256, 266·67 (Pa. Super. 2009).
Upon having the court reporter read the question and answer to the Court and
counsel at sidebar, this Court reasoned that to whom Agent Hammennan's answer
referred was ambiguous. Agent Hammerman's answer could easily have been referred
to the Cl's prior transactions with others rather than with the Defendant. Agent
Hammerman merely used the pronoun, "they" when referring to prior transactions.
Since defense counsel was questioning Agent Hammerman about the CI during that
time in his cross-examination, Agent Hammerman's answer could easily have referred
to any other person , and not the Defendant. Moreover, Agent Hammerman merely
answered the question as presented to him.
Although defense counsel reserved the right to request a curative instruction
regarding Agent Hammerman's testimony, defense counsel did not request and this
Court did not provide a curative instruction. AHhough juries are presumed to follow the
5lRD
JUDICIAL. instructions of the Court, see Comm. v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000), it is
DI S TRICT
L ... WR .... C .. COU .. TY
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24
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• •
this Court's belief that under these circumstances, a curative instruction to the jury
instructing them to disregard Agent Hammerman's answer would have been counter
productive as it would have drawn more attention to the answer. Agent Hammerman's
reference to a prior bad act was not of a nature that its unavoidable effect was to
deprive the Defendant of a fair trial by preventing the jury from weighing and rendering a
true verdict. As such, Defendant is not entitled to a mistrial for Agent Hammerman's
reference to a prior bad act.
Next, the Defendant argues in the instant Motion that he is entitled to a new trial
on the basis that the Commonwealth failed to authenticate text messages prior to
introducing testimony relating those text messages. "Authentication [of text messages]
is a prerequisite to admissibility." Comm. v. Koch, 39 A.3d 996, 1005 (Pa. Super.
2011). If such messages are not authenticated, they constitute inadmissible hearsay, in
violation of Pennsylvania Rules of Evidence 801' and 802'.
"[A]uthentication of electronic communication, like other documents, requires
more than mere confirmation that the number or address belonged to a particular
person. Circumstantial evidence, which tends to corroborate the identity of the sender,
is required." The Superior Court in Koch explained circumstantial evidence to
consider that would corroborate the identity of the sender includes, inter alia, testimony
from persons who sent or received the text messages or contextual clues in the text
4Pa.R.E. 801 defnes hearsay as follows:
(a) Statement. A "stalement" is (1) an oral or written assertion or (2) nonverbal conduct of 8. person, if it is
intended by the person as an assertion.
(b) (b) Dec(aranl A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testitying at the trial or
hearing, offered in evidence to prove the truth of the maner asserted."
SJlle
JUDICIAL.
PaKE. 801.
OISTRICT
Pa.R.E. 802 provides the following: "Hearsay is not admissible except as provided by these rules, by other rules
prescribed by the Pennsylvania Supreme Court, or by statute." PaRE. 802.
" ... WREN':'" CQUNTY
""'''''!lyLV,,'''''
25
• •
messages themselves tending to reveal the identity of the sender. & If the improper
admission of text message evidence could reasonably have contributed to the jury's
verdicl. & at 1007. For example, in Koch , the text message evidence proved to be a
vital element of the Commonwealth's proof on the charges against the defendant such
that the prejudicial effecl of their improper admission was so pervasive in tending to
show that the defendant took part in an illicil enterprise that the Superior Court could not
find the tnal court's error to be harmless. & The Superior Court found that under the
circumstances of Koch , a new trial was warranted . .!sl
In the instant case , this Court found adequate circumstantial evidence existed to
establish the Defendant was the individual who sent the text message to the CI to
arrange the drug transaction . During direct examination, the CI was recalling the events
of March 2, 2009. After explaining that his attempts to call the Defendant in the
presence of Agent Hammerman were unsuccessful, the CI recalled that when he
returned home he received a text message. The following questions and answers
occurred thereafter:
Q: And do you remember what the text message was?
A: He was like, well, what's up.
Q: Do you know who sent you - - I'm sorry. Do you know what
phone number the text message came from?
A: No, ma'am.
Q: But who did you think you were talking to?
(T.T. Day 2, pg. 144). At that pOint, defense counsel requested a sidebar where he
HIII D
JUDICIAL objected to the introduction of the text message testimony. This Court overruled the
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•
• •
objection and permitted the Commonwealth to proceed questioning the CI about the text
messages. When direct examination continued, the CI testified that when the
Defendant would get a new telephone number, he would text it to the CI. When the CI
received the new number, he would save il in his phone. When he received a new
number from the Defendant. the CI would inform Agent Hammerman of that number.
This circumstantial evidence is consistent with what the Superior Court explained in
Koch. The recipient of the text messages, the CI, testified that the Defendant would
contact him with a new phone number. This testimony tends to prove the Defendant
was the sender of the text messages as it was consistent with his past behavior when
contacting the CI. As a result, the text messages were properly authenticated. The
Defendant is not entitled to a new trial under this argument.
Finally, the Defendant seeks to have this Court to modify his sentence as
imposed on November 16, 2012 on the basis that the Commonwealth failed to provide
the Defendant with reasonable notice of its intention to proceed under the mandatory
term of imprisonment as set forth under 18 Pa.C.SA § 7508. The Defendant argues
he should have been sentenced pursuant to the standard guidelines as set forth under
42 Pa.C.SA § 9721. Section 7508 sets forth the minimum penalties that apply to
specific drug offenses. "[W]here a statute requires the Commonwealth to provide notice
of its intent to seek a statutorily defined, minimum sentence, trial courts cannot impose
such a sentence without the requisite notice." Comm. v. Vasquez, 744 A.2d 1280,1283
(Pa. 2000). Section 7508 mandates that the Commonwealth give "reasonable" notice of
its intention to proceed under this section. 18 Pa.C.SA § 7508. Such notice shall be
'3"0
JUDICIA.L given "after conviction and before sentencing.' Id. at 7508(b). Notice has been
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, . . . . - - - - - - - r r - - - - - - - - -- - - -- - .
•
considered to be reasonable under various circumstances. See Comm. v. Diamond,
945 A.2d 252, 257 (Pa. Super. 2008) (concluding one month notice prior to sentencing
was reasonable); Comm. v. Saksek, 522 A.2d 70, 72 (Pa. Super. 1987) (concluding
three days notice prior to sentencing constituted reasonable notice); Comm. v. Daniels,
656 A.2d 539, 542 (Pa. Super. 1995) (concluding notice was reasonable when given
during plea negotiations); and Comm. v. Bell, 645 A.2d 211, 218 (Pa. 1994). (finding
harmless error when the Commonwealth gave a defendant notice of its intention to seek
the mandatory minimum sentence prior to trial).
In the instant case, the Commonwealth submitted to the Court during the
Sentencing Hearing on November 16, 2012, that the Commonwealth has had direct
conversations with defense counsel prior to trial regarding the imposition mandatory
minimum sentence upon conviction. (T. pg. 5). Moreover, the Commonwealth recalls a
conversation with defense counsel prior to trial in which defense counsel asked the
Commonwealth would consider waiving the mandatory minimum for a guilty plea. (T.
22). The Commonwealth specifically recalls a statement made my defense counsel that
the Defendant could not accept a plea because he was on federal supervision. (T. 23).
Additionally, although a defendant has a right to sentenced within 90 days of
conviction, the sentencing was expedited by defense counsel. The Court informed the
Defendant that it would grant a continuance it he believed there is prejudice to him.
Defense counsel refused to request a continuance on the basis that to request a
continuance that day would provide the Commonwealth with an opportunity to inform
the Defendant of its intention to pursue the mandatory minimum sentence. Such
SlRC
JUOICIAL. behavior, the Defendant argues, is a manipulation of the statute. The Commonwealth
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responded that the Deputy Attorney General would return on the morning of Monday,
November 19, 2012 it would serve the Defendant. Considering the above, this Court
sentenced the Defendant to the mandatory minimum provided by 18 Pa.C.S.A. § 7508.
As stated above, informing a defendant of the intention to impose the mandatory
minimum sentence prior to the start of trial and during plea negotiations is considered to
be reasonable notice. It is this Court's belief that such notice was given in the instant
case. As a result, the Court properly sentenced the Defendant to the mandatory
minimum provided by 18 Pa.C.SA § 7508.
Based upon the foregoing , the Defendant's Post Verdict Motion is DENIED in its
entirety.
5 3 .. D
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O IS TR IC T
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. '
COMMONWEALTH OF
• •
IN THE COURT OF COMMON PLEAS
PENNSYLVANIA,
LAWRENCE COUNTY, PENNSYLVANIA
VO .
NO. 692 of 2009, C.R.
WALTER KEVIN MOORE, III,
OTN: K894083·1
Defendant
APPEARANCES
FOR THE COMMONWEALTH : Maureen Sheehan·Balchon, Esquire
Deputy Attorney General
Drug Strike Force Section
105 Independence Blvd,
Butler, PA 16001
FOR THE DEFENDANT: Bradley G, Olson, Jr., Esquire
312 North Jefferson Street
2nd Floor
New Castle, PA 16101
OPINION
Piccione, J . August 5, 2013
This Opinion pursuant to Pa.RAP, 1925(a) in support of its Order of Court and
Opinion dated April 25, 2013, which denied the Post Verdict Motion filec by the
Defendant, Walter Kevin Moore, III (hereinafter, the "Defendant"). The Court received
the Defendant's Concise Statement of Matters Complained of on Appeal (hereinafter,
the "Concise Statement") on May 31, 2013, The Defendant asserts in his Concise
Statement that this Court erred in the following ways: (1) denying Defendant's pro se
Motion to Dismiss; (2) not allowing the Defendant to proceed with a Motion for Habeas
Corpus where he waived his preliminary hearing; (3) allowing Agent Jason
Hammerman to read a statement of consent allegedly signed by the confidential
53RO
JU O IC I ... L informant over the objection of defense courisel during the hearing regarding the
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r
Defendant's omnibus pretrial motion; (4) allowing Agent Jason Hammerman to read a
statement of consent allegedly signed by the confidential informant (hereinafter, the
"CI") over the objection of defense counsel during the hearing regarding the
Defendant's omnibus pretrial motion where the CI did not testify as to whether or not
he was coerced into signing the document; (5) in denying the Defendant's Motion in
I
Limine and failing to suppress text messages without authenticating them; (6) in
I
denying the Defendant's Motion in Limine and failing to limit the testimony of witnesses
to personal observations; (7) in denying the Defendant's Motion in Limine and to
mandate that the Commonwealth disciose to defense counsel the internal operating
procedures with regards to the use of the CI; (8) failing to strike a juror where the juror
was the wife of a retired police chief; (9) failing to sustain defense counsel's
objection that the Commonwealth was leading its witnesses; (10) allowing the CI tol be
dressed in street clothes, as opposed to prison garb, where the CI was incarcerateJ at
I
the time of trial; (11) sustaining the Commonwealth's objection that Arnt
Hammerman police report could not be provided to Corporal Lagnese during crFss
examination in order to refresh his recollection ; (12) denying Defendant's oral mopon
for judgment of acquittal of all charges; (13) denying Defendant's motion to a4mit
Defense Exhibits 2, 3,4,7, 8,9, 10, and 11; (14) denying Defendant's Post Verdict
Motion because the Defendant's convictions were against the weight of the
(15) denying the Defendant's Post Verdict Motion because the Defendant's convict!:,"s
were based upon insufficient evidence; (16) denying the Defendant's Post Ve/dict
Motion because the Defendant's convictions resulted from a violation of Bradr v.
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Maryland, 83 S.C!. 1194 (1963), when the Defendant was refused access toi the
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Attorney General's internal protocol regarding the use of the CI; (17) denying the
Defendant's Post Verdict Motion because the Defendant's convictions resulted from .a
violation of Brady v. Maryland, 83 S.C!. 1194 (1963), because defense counsel was
,
not granted access to Agent Hammerman's grand jury testimony; (18) denying tHe
I
Defendant's Post Verdict Motion because the Defendant's convictions resulted from la
I
violation of Brady v. Maryland, 83 S.C!. 1194 (1963), because Agent
destroyed his investigatory notes; (19) denying the Defendant's Post Verdict Motifn
because the Defendant's convictions resulted from a violation of Brady v. Maryland, r3
S.C!. 1194 (1963), because the Commonwealth failed to provide defense counsel with
any information regarding the debriefing location of the CI relative to his str/p-
searches; (20) denying the Defendant's Post Verdict Motion because the Defenda1t's
was deprived of a fair trial when from Agent Hammerman referenced a prior bad
(21) denying Defendant's Post Verdict Motion because the Defendant was deprive1 of
,
a fair trial when the Commonwealth introduced text messages without
authenticating them; and (22) denying the Defendant's Post Verdict Motion when the
I
Commonwealth failed to provide defense counsel with reasonable notice of I its
intention to proceed pursuant to 18 Pa.C.SA § 7508.
,
The Defendant first asserts that this Court erred in denying the Defendant's ,pro
se Motion to Dismiss. The Defendant was not represented by counsel on AUgUst:17,
2011 when he filed pro se Motion to Dismiss. In the Motion to Dismiss, :Ihe
Defendant's first argument was that this Court did not have subject matter or in
I
personam jurisdiction. This claim is without meri!.
The Commonwealth produced
S3AP I
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committed in the City of New Castie, Lawrence County. Additionally, this Court was
competent to hear the evidence of the crimes in this case. As a result, the
Defendant's challenge to subject matter jurisdiction was without merit.
The Defendant also alleged in the pro se Motion to Dismiss that this Court was
without in personam jurisdiction. This allegation is similarly without merit. The
Defendant's address as contained in the Court's file is listed as "213 E. FairmontAve.;
New Castle, PA 16101." The Defendant's residence is in the City of New Castle,
I
Lawrence County. As a result, this Court sufficiently has in personam jurisdiction ov1'
,
the Defendant.
The Defendant next argued in the pro se Motion to Dismiss that "Water Kej n
Moore, III" is not his legal name. The Court could not find any law to support t1"
allegation that this is a basis upon which the charges against the Defendant should
dismissed. The Commonwealth had sufficient evidence contained in the informati9n
and affidavit of probable cause to identify the Defendant as the individual
committed the crimes charged against him. As a result, this is allegation is simila!ly
without merit.
Next, the Defendant argued in the pro se Motion to Dismiss that he has! a
constitutional right to receive an indictment or presentment by an investigating grapd
jury, and he was deprived of that right. Upon review of the record, the investigatir g
grand jury did return a presentment and recommendation of charges to be filed agai?st
him. The Presentment was attached to the affidavit of probable cause that was file1 in
this Court. As a result, this allegation is also without merit.
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• •
Next, the Defendant argued in the pro se Motion to Dismiss that a waiver of
appearance at arraignment was entered without his consent. w is well settled that an
it
arraignment is intended to fulfill three primary purposes: to make a definite
identification of the accused, to give the accused notice of the charges against him
and to give the accused the opportunity to enter a plea." Comm. v. Andrews, 426 A.2d
1160, 1162 (Pa. Super. 1981). An arraignment may be waived if the defendant and
his counsel sign and file a waiver of appearance at arraignment that acknowledges
that the defendant "(a) understands the nature of the charges; (b) understands the
rights and requirements contained in paragraph (C) of this rule; and (c) waives his or
her right to appear for arraignment." Pa.R.Crim.P. 571(D)(2).
A waiver of arraignment was filed in this Court on August 4, 2009. The waiver
of arraignment was filed by the Defendant's then counsel of record. The waiver
contains both the Defendant's and his attorney's signatures. Additionally, the waiver
states that the Defendant "received notice to appear for arraignment scheduled for
August 4,2009, and being represented by counsel, who has fully advised me of all my
rights relative to this criminal proceeding, does hereby waive arraignment in conformity
with the Rules of Criminal Procedure and enters a plea of 'Not Guilty' to the charges
indicated above." This Court finds the waiver of arraignment to be in conformity with
the Rules of Criminal Procedure. Additionally, the wavier contains the Defendant's
signature. As a result, the waiver of arraignment was not fraudulently filed without his
consent. Therefore, this allegation is without merit.
Next, the Defendant argued in the pro se Motion to Dismiss that his
5]R D
JUDICIAL Constitutional right to confront his accused was violated when the CI did not testify at
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his preliminary hearing. At the present posture of this case, the trial has occurred and
a jury convicted the Defendant of the charges filed against him. Although the CI did
not appear during the preliminary hearing, the CI did appear in Court to testify during
the trial. The Defendant had a full and fair opportunity to confront his accused throi gh
cross-examination during the trial. Therefore, any defect in the preliminary hearing is
harmless because the evidence has already been submitted to a jury. Comm .! v.
Ruza, 511 A.2d 808 (Pa. 1986).
Next, the Defendant argues in the pro se Motion to Dismiss that he had not
received any discovery materials. Upon review of the record , the Court finds that the
I
Defendant had not filed any request for discovery or any discovery motion. the
Defendant makes no allegation that he attempted to seek the evidence . he
t
Commonwealth had against him. Before the date of the hearing on the pro se Mol ion
to Dismiss , the Defendant indicated to the Court that he was seeking of continuancf in
order to obtain competent counsel. Six days after hearing before the President Judge
,
Dominick Motto, the Defendant's trial counsel entered his appearance. The
Defendant's trial counsel sought and received discovery on the Defendant's behalf.
I
As a result, this error was harmless.
The Defendant's penultimate argument in the pro se Motion to Dismiss is r at
he was denied his Eighth Amendment right to bail. Upon the filing of the criminal
complaint, the Defendant's bail was set to $100,000.00. The Defendant argues /hat
this is amount was excessive. The court found this amount to be appropriate given the
seriousness of the charges and the other facts considered. The Defendant
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already been convicted and sentenced. The Court is without an available remedy for
the Defendant if bail were deemed to have been excessive.
Lastly, the Defendant argues in the pro se Motion to Dismiss that the criminal
complaint was fraudulent paperwork filed by the Commonwealth. The Defendant
argues that the criminal complaint does not contain an official seal. Upon review, the
Court notes that an official seal does appear in the criminal complaint. As a result of
the above analysis, this Court did not err by denying the Defendant's pro se Motion to
I
Dismiss. i
For analysis of the issue herein numbered two (2), the Superior Court IS
directed to pages two (2) through three (3) of the Opinion dated May 4,2012. I
The Defendant's third allegation that this Court erred at the Defendant's heari1g
regarding the Omnibus Pretrial Motion when the Honorable John Hodge
Agent Hammerman to read a statement of consent allegedly signed by the confidential
informant over the objection of defense counsel on the basis of hearsay. During
hearing on the Defendant's Omnibus Pretrial Motion, the Commonwealth asked Its
witness, Agent Hammerman, to read the CI's statement of consent to allow tre
Commonwealth to make recorded phone calls and communications between the CI
and the Defendant. At that point, the Defendant objected to Agent Hammermaf's
reading the CI's statement on the basis of hearsay. The Honorable John Hoopa
overruled the objection and permitted Agent Hammerman to read the CI's statemen10f
consent into the record .
Rule 801 of the Pennsylvania Rules of Evidence provides that hearsay is "a
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statement that (1) the declarant does not make while testifying at the current trial lor
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hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in
the statement." Pa.R.E. 801 (c)(l) and (2). Hearsay is inadmissible except as
provided by the Pennsylvania Rules of evidence, by statule, or by rule prescribed by
the Pennsylvania Supreme Court. Pa.R.E. 803. "The hearsay rule provides that
evidence of a dedarant's out-of-court statements is generally inadmissible because
such evidence lack guarantees of trustworthiness fundamental to the Anglo-American
system of jurisprudence." Comm . v. Chamberlain, 731 A.2d 593, 595 (Pa. 1999).
Here, the CI's statement does not hearsay. The Cl's stalement of
consent was offered to explain a course of conduct performed by the police and the
Office of Ihe Attorney General of Pennsylvania to make recordings of telephone
communications. "[Aln out-of-court statement offered to explain a course of conduct
is not hearsay." Comm. v. Cruz, 414 A2d 1032, 1035 (Pa. 1980). These out-of-court
statements are not offered for the truth of the matter asserted; rather, they are being
offered "merely to show the information upon which police acted ." Comm. v. Sneed,
526 A.2d 749, 754 (Pa. 1987). Agent Hammerman was being questioned, and
testifying to the procedures he took before recording telephone conversations. This
testimony constituted course of conduct testimony. which is admissible nonhearsay.
As a result, the Defendant's objection lacked merit and Ihis Court did nol ejr in
overruling the Defendant's objection.
The Defendant's fourth allegation is that this Court erred in allowing Ahent
Hammerman 10 read a statement of consent allegedly signed by the CI ove1 the
objection of defense counsel during the hearing regarding the Defendant's omTbus
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pretrial motion where Ihe CI did not testify as to whether or nol he was coerced! inlo
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signing the document. This allegation is unfounded. The Defendant was not
prejudiced by this pretrial matter. The CI was available during the trial and was
effectively cross-examined by defense counsel. ' If ... it is determined at trial that the
evidence of the Commonwealth is sufficient to be submitted to the jury, then any
deficiency in the presentation (during a pretrial hearing] would have been harmless."
Comm. v. Ruza, 511 A.2d 808 (Pa. 1986). Such is the case here. Since the
Defendant had a full opportunity to cross-examine the CI at trial, th is Court did not err
in allowing Agent Hammerman to read a statement of consent signed by the CI.
The Defendant's fifth allegation is that this Court erred in denying its Motion in
Limine and failing to suppress text messages that were not authenticated. This Court
addressed the authentification of the text messages presented during the trial in its
Opinion dated April 25, 2013. For this analysis, the Superior Court is directed to pages
twenty-five (25) through twenty-seven (27) of the Opinion dated April 25, 2013.
The Defendant's sixth allegation is that this Court erred in denying the
Defendant's Motion in limine and failing to limit the testimony of witnesses to personal
obselVations. The Defendant's Motion in Lim ine requested that this Court instruct
witnesses to testify in conformance with the Pennsylvania Rules of Evidence. Rule
602 of the Pennsylvania Rules of Evidence provides in relevant part, "A witness may
testify to a matter if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter].]" Pa.R.E. 602. The proper method to
challenge a witness's testimony is to object if a witness is asked a question of which
the witness has no personal knowledge. Each party is already required to comply with
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Additionally, the Defendant was permitted to object to any testimony at any point as
permitted by law. As a result, this Court did not err in denying the Defendant's Motion
in Limine.
For analysis of the issue herein numbered seven (7), the Superior Court is
directed to page twenty-one (21) of the Opinion dated April 25, 2013.
The Defendant's eighth allegation is that this Court erred failing to strike a juror
where the juror was the wife of a retired police chief. The Court notes for the Superior
Court that the Defendant did not request the voir dire to be transcribed. As a result,
this Court is unable to reference specific justification noted on the record at the time of
jury selection. However, this Court refused to strike a juror whose husband was a
retired police chief because there was no showing of bias or prejudice.
A prospective juror should be excused for cause in two
situations: the first is where the prospective juror indicates
by his answers that he will not be an impartial juror ... The
second is where, irrespective of the answers given in voir
dire, the court should presume the likelihood of prejudice on
the part of a prospective juror because the potential juror has
a close relationship, be it familial, financial, or situational,
with any of the parties, counsel, victims or witnesses.
Comm. v. Stamm, 429 A.2d 4,7 (Pa. Super. 1981) (internal quotation marks omitted).
Here, the juror did not have a close relationship to any party, counsel, victims or
witnesses in the instant case. Therefore, the Court could not presume bias.
Additionally, the juror indicated that she could be an impartial juror irrespective of her
husband's former position. Because the juror indicated that she could be an impartial
juror, without bias or prejudice, the Court properly refused to strike her from the jury.
53AO For analysis of the issue herein nine (9), the Superior Court is directed to pages
JUOICIAL
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eighteen (18) through nineteen (19) of the Opinion dated April 25, 2013.
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The Defendant's issue herein numbered ten (10) alleges this Court erred by
allowing the CI to be dressed in street clothes, as opposed to pMson garb, where the
CI was incarcerated at the time of mal. This contention is not supported by the laws of
this Commonwealth. This Court finds no prejudicial effect by allowing the CI to appear
before the jury in street clothing. The Defendant's counsel extensively questioned the
CI about his prior arrests and his current residence in prison. The Defendant's
presumption of innocence was in no way affected by the CI's attire. Moreover, the
Court did not find it necessary to keep the CI in prison garb with shackles in order to
maintain order. See Comm. v. Mayhugh, 336 A.2d 379, 381-82 (Pa. Super. 1975). As
a result, this Court did not err in permitting the CI to appear at the trial in civilian
clothing.
Next, in issue herein numbered eleven (11), the Defendant alleges this Court
erred in sustaining the Commonwealth's objection that Agent Hammennan's police
report could not be provided to Corporal Lagnese during cross examination in order to
refresh his recollection. Pennsylvania Rule of Evidence 612 provides in relevant part,
"A witness may use a writing or other item to refresh memory for the purpose of
testifying while testifying, or before testifying ," Pa,R.E. 612(a). Before a witness may
refresh his recollection while testifying , "The proponent must establish that: 1) the
witness's present memory is inadequate; 2) the wMting or other aid could refresh the
witness's memory and 3) the writing or other aid actually refreshes the witness's
memory: Comm. v. Montgomery, 687 A.2d 1131, 1137 (Pa. Super. 1996).
In the instant case, defense counsel was cross-examining Corporal Lagnese ,
53Ro
JUDICIAL Defense counsel asked, "You certainly have seen Agent Hammerman's report that
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was generated two weeks later on March 16 of 2009, correct?" (N.T. Trial Day 3, pg.
46). Corporal Lagnese answered, "Yes." (N.T. Trial Day 3, pg. 46). Defense counsel
then requested Corporal Lagnese be provided with a copy of Agent Hammerman's
report. (N.T. Trial Day 3, pg. 47). The Commonwealth objected at this point on the
basis that defense counsel has not established that Corporal Lagnese's memory had
failed. (N.T. Trial Day 3, pg. 47). This Court sustained the Commonwealth's objection
on that ground. Defense counsel did not establish a proper foundation at that time in
order to permit Corporal Lagnese to have his recollection refreshed. Merely
requesting that Corporal Lagnese be provided with a copy of Agent Hammerman's
report is wholly inadequate to establish that his memory was inadequate. As a result,
this Court did not err in sustaining the Commonwealth's objection to prohibit Corporal
Lagnese from using Agent Hammerman's police report to refresh his recollection.
The Defendant's twelfth allegation is that this Court erred in denying
Defendant's oral motion for judgment of acquittal of all charges. Following the
Commonwealth's case in chief, defense counsel made an oral motion at side bar for a
judgment of acquittal. Defense counsel argued that the Commonwealth had not met
their burden with respect to all charges. Defense counsel further argued that because
each agent admitted that they lost surveillance of the CI for a time during the
controlled purchase, no reasonable person could conclude that the Defendant is guilty
of the charges against him. This Court denied the Defendant's motion for judgment of
acquittal. (N.T. Trial Day 3, pg. 84).
"A motion for judgment of acquittal challenges the sufficiency of the evidence to
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•
Commonwealth has failed to carry its burden regarding that charge." Comm. v.
Foster, 33 A.3d 632, 635 (Pa. Super. 2011). The Superior Court is directed to pages
two (2) through sixteen (16) of the Opinion dated April 25, 2013 for analysis of the
sufficiency of the evidence. Because this Court concluded, and the jury later decided,
the Commonwealth had met its burden with respect to all charges, the Court did not
err in denying the Defendant's oral motion for judgment of acquittal.
The Defendant's thirteenth allegation is this Court erred in denying Defendant's
motion to admit Defense Exhibits 2, 3, 4, 7, 8, 9, 10, and 11 as contained in
Defendant's Exhibit F. The Defendant's only witness was Mr. Vincent Martwinski
(hereinafter, "Martwinski"). Martwinski contracted with the Defendant to provide
private investigator services, as he is licensed as such. Martwinski's services included
taking a number of photographs in the area of Ray, Elder, Ash and Scott Streets in
July 2012. (N.T. Trial Day 3, pg. 86-7). Martwinski testified during the trial regarding a
number of those photographs. Following Martwinski's testimony, the Defendant
moved for the admission of Defendant's Exhibit F into evidence. Defendant's Exhibit F
contained twelve photographs numbered sequentially one through twelve. The
Commonwealth objected to the admission of numbers 2, 3, 4, 7, 8, 9, 10, and 11,
arguing that Martwinski failed properly authenticate them. This Court admitted
photographs numbered 1, 5, 6 , and 12, and refused to admit numbers 2,3, 4,7, 8,9,
10, and 11 for failure to authenticate. The Defendant now argues this was in error.
Pennsylvania Rule of Evidence 901 (a) provides, "The requirement of
authentication or identification as a cond ition precedent to admissibility is satisfied by
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claims." Pa.R.E. 901(a). In order to satisfy this standard, the witness must testify with
sufficient knowledge that the matter is what it is claimed to be. Pa.R.E. 901(b)(1). "To
authenticate photographs, ... Pennsylvania courts have always and without exceptipn
held that the photograph ... must be authenticated through testimony from a witness
with personal knowledge who can testify that it fairly and accurately represents tJat
which it purports to depict." Comm. v. McKellick, 24 A.3d 982, (Pa. Super. 2011)
(internal quotations marks and citations omitted). I
In the instant case, Martwinski only referred to photographs numbered 1,5, 6,
and 12. Martwinski testified to the accuracy of only those four photographs. secaur
photographs numbered 2, 3,4,7,8,9,10, and 11 were not so much as mention1d,
the Defendant failed properly authenticate those photographs. As such, the Court did
not err when it failed to admit photographs numbered 2, 3, 4, 7, 8, 9, 10, and 11
evidence. I
For analysis of the issue herein numbered fourteen (14), the Superior Court is
directed to pages sixteen (16) through eighteen (18) of the Opinion dated April 25,
2013.
For analysis of the issue herein numbered fifteen (15), the Superior Court ,
,is
directed to pages two (2) through sixteen (16) of the Opinion dated April 25, 2013. i
For analysis of the issues herein number sixteen (16) through nineteen (19), ti e
Superior Court is directed to pages nineteen (19) through twenty-three (23) of t1e
Opinion dated April 25, 2013. .
JUDICIAL
DISTRICT
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.. " .... SV .. VA .. 'A
14
Circulated 08/27/2014 03:40 PM
For analysis of the issue herein numbered twenty (20), the Superior court is
l
directed to pages twenty-three (23) through twenty-five (25) of the Opinion dated
25 , 2013.
For analysis of the issue herein numbered twenty-one (21), the Superior cor
is directed to pages twenty-five (25) through twenty-seven (27) of the Opinion dated
April 25, 2013. I
For analysis of the issue herein numbered twenty-two (22) , the Superior Co ' rt
is directed to pages twenty-seven (27) through twenty-n ine (29) of the Opinion dat d
April 25, 2013.
Because of the reasoning contained herein, as well as the analysis contained in
the Opinions dated May 4,2012 and April 25, 2013, the Defendant's appeal should e
denied.
HilI)
JUO IC IAL.
,,
OI STA le T
:IL EO/ORIGINAI
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.. ..... " A,.'A
-5 l- 3,
15
HELEN I. MORGA!.
PQI.n .8.lJn 1"'1 C'"n L..l
I TRANSM ISSION VERIFICATION REPORT
.
I
Circulated 08/27/2014 03:40 PM
•
TIME : 138/136/2131 3 68:4 5
I>WE : LC PROTI-Ol)TAfN
FAX: 7246542824
TEL: 7246542824
SER .• : BROL9J990845
DATE. TH£ 138/66 68 : 43
FAX f'.[) , /HA/£ CLsa< 8
IX...RATIi:J'./ 0B: e2 : 17
PAGE (S) I.
[)(
""SILT
...:JIlE STANDARD
EO<
COMMONWIOAlTH OF IN THE COURT OF COMMON PLEAS
PENNSYlVANIA,
LAWRENCE COUNTY, PENNSYLVANIA
VS.
NO. 692 of 2009, C.R.
WALTER KEVIN MOORE, III,
OTN: K894083.1
Defandant
ORDER OF COURT
AND NOW, th is 5th day of August, 2013, the Court having received Defendant's
Concise Statement of Matters Complained of on Appeal, with Deputy Attomey General
Maureen Sheahan·Balchon, Esquire, rep resenting the Commonwealth, and with
Bradley G, Olson, Jr. , Esquire, representing the Defendant, the COlr! hereby ORDERS
and DECREES as follows:
1, The Court issues the attached Opinion pursuant to Pa RAP, 1925(a),
2, The Clerk of Courts shall properly serve notice of this Order and
attached Opinion upon counsel of record ; and if a party has no cou"sel, then upon said
party at their last known address as contained in the Court's file ,