Com. v. Green, M. ( 2018 )

J-A08026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MARCUS A. GREEN :
: No. 1671 EDA 2017
Appellant :
Appeal from the Judgment of Sentence April 25, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002453-2015
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 13, 2018
Marcus A. Green appeals from the judgment of sentence, entered in the
Court of Common Pleas of Delaware County, after a jury convicted him of
three counts of possession of a controlled substance (oxycodone),1 three
counts of possession of drug paraphernalia,2 two counts of criminal conspiracy
to possess a controlled substance,3 and possession of a firearm by a prohibited
person.4 Upon careful review, we affirm, in part on the basis of the opinion
authored by the Honorable Mary Alice Brennan.
____________________________________________
1 35 P.S. § 780-113(a)(16).
2 35 P.S. § 780-113(a)(32).
3 18 Pa.C.S. § 903.
4 18 Pa.C.S. § 6105.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A08026-18
Green’s convictions stem from a search conducted at his home pursuant
to a warrant obtained after members of the Upper Darby Township Narcotics
Unit observed Green make three hand-to-hand controlled sales of crack
cocaine to a confidential informant (CI). When agents entered Green’s home
to execute a search warrant, the Narcotics Unit, accompanied by the Delaware
County Drug Task Force, encountered Green and his girlfriend, Monique
Edwards, in the living room. On Green’s person were two iPhones, $3,343.00
in cash, and one pill later identified as oxycodone. Throughout the house the
agents found numerous empty ziploc bags, two scales with powdery white
residue on them, a razor with powdery white residue on it, $6,000.00 in cash,
oxycodone pills, suboxone in film and pill form, and a loaded .380 automated
hand gun.
After a trial held on February 1, 2017, a jury found Green guilty of the
above charges. On April 25, 2017, the trial court sentenced him to an
aggregate sentence of four to ten years’ imprisonment. This timely appeal
followed, in which Green raises the following issues:
1. Whether the evidence at trial was insufficient to support the
conviction for [p]ossession of a [f]irearm [p]rohibited[?]
2. Whether [the Commonwealth] failed to carry its burden of
proof to establish the validity and veracity of the information
contained in the search warrant; and whether the Honorable
Court below erred by not affording [Green] the traditional
safeguard of cross-examination, to test the truthfulness of the
recitals[?]
3. Whether the Honorable Court below erred by permitting expert
testimony regarding drug distribution with respect to the use
of drug paraphernalia[?]
-2-
J-A08026-18
4. Whether the Honorable Court below erred by denying [Green’s]
request for the jury instruction [on the] defense [of]
authorization for possession of a controlled substance, and
denying [Green] the opportunity to adequately argue a defense
[of] authorization[?]
5. Whether [Green’s] right to remain silent was violated by
Sergeant [Timothy] Bernhardt’s testimony during cross-
examination[?]
6. Whether the Honorable Court below erred by not quashing the
preliminary hearing transcript as a result of [the
Commonwealth] not establishing a prima facie case[?]
7. Whether the Honorable Court below erred by denying [Green’s]
motion in limine to exclude[] the admission of Exhibit 36A, a
staged photograph of seized evidence[?]
Appellant’s Brief, at 4-5.5
Green’s first assignment of error concerns the sufficiency of the evidence
to sustain his possession of a firearm conviction. Our standard of review of
such claims is well-settled:
In challenges to the sufficiency of the evidence, our standard of
review is de novo, however, our scope of review is limited to
considering the evidence of record, and all reasonable inferences
arising therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner. Evidence is sufficient if it can
support every element of the crime charged beyond a reasonable
doubt. The evidence does not need to disprove every possibility
of innocence, and doubts as to guilt, the credibility of witnesses,
and the weight of the evidence are for the fact-finder to decide.
We will not disturb the verdict 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.
____________________________________________
5 We have renumbered certain of Green’s claims for ease of disposition.
-3-
J-A08026-18
Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (internal
citations and quotation marks omitted).
When contraband is not found on a defendant’s person, the
Commonwealth may meet its burden by showing possession existed jointly or
constructively. Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa.
Super. 2016). Constructive possession is essentially an inference arising from
the facts and circumstances that possession of the contraband was more likely
than not. Id. at 768. “The Commonwealth may sustain its burden by means
of wholly circumstantial evidence.” Id. Upon review of the record, the briefs
and the relevant law, we conclude that Judge Brennan thoroughly and
correctly addresses this claim in her opinion, and we affirm on that basis.
Green next argues the trial court abused its discretion by denying him
the opportunity to cross-examine the affiant of the search warrant, in order
to test her truthfulness. For the following reasons, Green is entitled to no
relief.
Prior to trial, Green filed an omnibus motion seeking, inter alia,
production of the CI and suppression of the evidence obtained pursuant to the
search warrant, which Green argued was not supported by probable cause.
At a hearing held on November 12, 2015, Green informed the court that he
was not actually seeking immediate production of the CI.6 Rather, he sought
____________________________________________
6Green’s counsel stated that he had filed the motion simply to place the court
and the Commonwealth on notice of the possibility that he may, at a later
date, request production of the CI.
-4-
J-A08026-18
first to cross-examine the affiant in order to test the truth of the recitals in
the affidavit. Only if the suppression hearing resulted in a finding by the court
that the affiant had been untruthful would Green seek production of the CI.
For its part, the Commonwealth rested on the four corners of the affidavit. At
the close of the hearing, the parties requested to brief the matter, which
request was granted. On January 5, 2016, the court denied Green’s motion
without holding a suppression hearing.
A defendant has the right to test the veracity of the facts recited in the
affidavit of probable cause. Commonwealth v. James, 69 A.3d 180, 187
(Pa. 2013). “To rule otherwise, would permit police in every case to
exaggerate or expand on the facts given to the magistrate merely for the
purpose of meeting the probable cause requirement, thus precluding a
detached and objective determination.” Commonwealth v. Hall, 302 A.2d
342, 344 (Pa. 1973). Where the issuance of a warrant is based on information
provided by a CI, “[i]f the informant was reliable, the search warrant was
issued with probable cause[;] if the informant was proven to be without
reliability, the warrant was improperly issued.” Id. at 345. While it is the
Commonwealth’s burden to prove the veracity of the statements contained in
the affidavit when the validity of the warrant is disputed, James, supra at
189, “the defendant must specify in his suppression motion his challenge to
the affidavit so the Commonwealth is alerted to its burden of proof; bald
allegations of failure to show probable cause are insufficient and require
-5-
J-A08026-18
nothing more than introduction of the affidavit and warrant.” Id., quoting
Commonwealth v. Ryan, 407 A.2d 1345, 1348 (Pa. Super. 1979).
Here, Green’s motion to suppress alleged only a lack of probable cause.
However, in his motion to produce the confidential informant, which he
incorporated by reference into his suppression motion, Green challenged the
reliability of the CI. This specific challenge to the validity of information
contained in the affidavit was sufficient to alert the Commonwealth to its
burden of proof, and a suppression hearing should have been held, at which
the Commonwealth would have borne the burden of establishing the validity
of the statements contained in the affidavit using live witnesses subject to
cross-examination. See James, 69 A.3d at 189. However, in this case, the
trial court’s failure to hold such a hearing was harmless error. Even if all
information obtained as a result of tips provided by the CI were excised from
the affidavit, probable cause would still exist by virtue of the three controlled
buys orchestrated and thoroughly documented in the affidavit by Officer
McAleer. Accordingly, the reliability of the CI is ultimately irrelevant. Because
the only other allegation in Green’s suppression motion was a bald claim of a
lack of probable cause, the Commonwealth was not required to introduce
anything beyond the affidavit and warrant. James, supra. Green is entitled
to no relief.
Green next challenges the admission of Commonwealth expert
testimony to prove Green’s intent to distribute drugs. “The admissibility of
expert testimony is within the sound discretion of the trial court and will not
-6-
J-A08026-18
be reversed absent an abuse of discretion.” Commonwealth v. Petrovich,
648 A.2d 771, 772 (Pa. 1994). Expert testimony is admissible to illustrate the
modus operandi of the drug trade, as it is admissible to explain any relevant
but obscure area of knowledge. Commonwealth v. Davenport, 452 A.2d
1058, 1062, 1063 n.1 (Pa. Super. 1982). The term drug paraphernalia is
defined as “[c]apsules, balloons, envelopes and other containers used,
intended for use or designed for use in packaging small quantities of controlled
substances.” 35 P.S. § 780-102(b)(9). However, it is also true that many
items, such as capsules and envelopes, have uses entirely unrelated to illegal
drug activity. Thus, section 780-102 enumerates factors to consider in
determining whether an item constitutes drug paraphernalia. “The thrust of
these considerations[] is that the Commonwealth must establish that the
items possessed[] were used or intended to be used with a controlled
substance.” Commonwealth v. Torres, 617 A.2d 812, 815 (Pa. Super.
1992). The Commonwealth may prove this through circumstantial evidence.
Id.Here, the Commonwealth presented evidence consisting of various small
ziploc bags, a scale, and a razor to prove Green’s intent to distribute drugs.
Thus, the testimony of two police officers was admissible to explain how the
possession of these items was consistent with an intent to deliver rather than
mere possession for personal use. Commonwealth v. Ariondo, 580 A.2d
341, 350-51 (Pa. Super. 1990). The trial court, therefore, did not err in
admitting the expert testimony which provided this context for the jury.
-7-
J-A08026-18
Green next alleges the trial court improperly denied his request for jury
instructions on his defense that he was authorized to possess the single
oxycodone pill found on his person. “A defendant is entitled to an instruction
on any recognized defense which has been requested, which has been made
an issue in the case, and for which there exists evidence sufficient for a
reasonable jury to find in his or her favor.” Commonwealth v. Weiskerger,
554 A.2d 10, 14 (Pa. 1989); Pa.R.Crim.P. 647. Green’s only evidence in
support of his authorization claim was the testimony of his best friend, Maurice
Edge, that Green at one time had a prescription for “some type of pain killer.”
N.T. Trial, 2/1/17, at 195. Edge did not know specifically what drug it was or
when Green allegedly possessed the prescription. Because this evidence was
insufficient for a reasonable jury to find in Green’s favor on this issue, the trial
court properly denied the requested jury instructions on authorization.
Next, Green contends that trial testimony of Sergeant Timothy
Bernhardt violated his right to remain silent. Specifically, on cross-
examination, defense counsel asked Sergeant Bernhardt, “Did you interview
my client in any way and ask him any questions about any of the items present
inside the house?” Bernhardt answered, “So, I attempted to and that’s when
I was told to go pound sand.” Id. at 28. Green argues he was not given any
notice through pretrial discovery that he had invoked his right to remain silent,
and therefore Green was “not able to request, through pretrial motions, that
the evidence of his pre-arrest silence be subjected to an assessment by the
-8-
J-A08026-18
[trial court] to determine whether the probative value of his pre-arrest silence
outweighed the prejudicial effect.” Appellant’s Brief, at 42.
Green’s argument is misplaced. It is true that the Commonwealth
“cannot use a non-testifying defendant’s pre-arrest silence to support its
contention that the defendant is guilty of the crime charged as such use
infringes on a defendant’s right to be free from self-incrimination.”
Commonwealth v. Adams, 39 A.3d 310, 318 (Pa. Super. 2012) (internal
citations omitted). Thus, a non-testifying defendant’s pre-arrest silence is
deemed “constitutionally protected,” and cannot be used as substantive
evidence of guilt. Id. However, Green’s premise is inapplicable to the case
at bar, where his pre-arrest statements were not being used by the
Commonwealth as substantive evidence of guilt. Indeed, it was defense
counsel who elicited the testimony on cross-examination, and counsel made
no objection, nor requested a sidebar, nor any type of curative instruction.
Furthermore, the Commonwealth did not exploit the reference. Accordingly,
Sergeant Bernhardt’s testimony did not infringe upon Green’s right to remain
silent. Moreover, because Green failed to object to the testimony, the claim
is waived. See Commonwealth v. Houck, 102 A.3d 443 (Pa. Super. 2014)
(failure to lodge timely and specific objection before trial court waives issue
on appeal).
Green next claims the trial court erred by not granting his motion to
quash at the preliminary hearing, after the Commonwealth allegedly failed to
establish a prima facie case. Green is entitled to no relief.
-9-
J-A08026-18
It is well-settled that once a defendant has gone to trial and guilt is
proven beyond a reasonable doubt, any claims regarding the sufficiency of the
evidence at the preliminary hearing become moot. Commonwealth v.
Rivers, 644 A.2d 710, 715 (Pa. 1994); see also Commonwealth v. Lee,
662 A.2d 645, 650 (Pa. 1995) (adjudication of guilt renders moot any
allegation that Commonwealth failed to establish prima facie case at
preliminary hearing). Accordingly, Green’s claim is moot.
Green’s final claim is that the trial court erred by permitting the
admission of Exhibit 36A, a staged police department photograph of the
evidence seized from the premises. Green argues this photograph was
irrelevant and unfairly prejudicial. The admissibility of evidence is a matter
for the trial court’s discretion, and a ruling will only be reversed for an abuse
of discretion. Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super.
2014). The trial court addressed this issue as follows:
[Green] does not state how the introduction of this evidence
prejudiced him[,] hampering this [c]ourt’s ability to address his
specific concern. However, each item depicted in the photograph
was admitted into evidence and published to the jury at trial. It
is difficult to construe how a photograph of the same items
admitted into evidence at trial prejudiced [Green] any more [than]
the admission of the original items. [Green’s] claim lacks merit.
Trial Court Opinion, 7/17/17, at 17.
We can discern no abuse of discretion on the part of the trial court in
concluding that Exhibit 36A was admissible. Green is entitled to no relief.
Judgment of sentence affirmed.
- 10 -
J-A08026-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/18
- 11 -
Circulated 07/09/2018 02:54 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v. : NO. CP-23-CR-0002453-2015
MARCUS A. GREEN
A Shelton Kovach, Esquire, for the Commonwealth
James B. Halligan, ill, Esquire, for Defendant
OPINION
Brennan, J. July 17, 2017
I. STATEMENT OF FACTS AND PROCEDURAL IDSTORY
After observing the Defendant, Marcus A. Green make three hand to hand
controlled buys of crack cocaine to a confidential informant, members of the Upper
Darby Township Narcotics Unit obtained a search warrant for Defendant's
residence located at 945 Fariston Road, Drexel Hill Pennsylvania. On Friday,
. March 13, 2015 at approximately 5:45 p.m. the Upper Darby Township Narcotics
Unit along with members of the Delaware County Drug Task Force executed the
search warrant. Upon entering the house, they found the Defendant and his
girlfriend and mother of their children, Monique Edwards in the living room.
Located on the Defendant's person were three thousand three hundred forty
three dollars ($3,343.00) in US currency, a silver iPhone, a blue iPhone and one
round green pill later identified as l 5mg Oxycodone, a schedule II narcotic.
1
53
Located in a black purse found between Edwards and the Defendant was a
black coin purse containing a plastic bag with numerous green ziploc bags and a
knotted sandwich bag filled with a hard white substance, later identified as cocaine;
three 8mg Suboxone sublingual films; and a tissue containing three round peach
colored pills later identified as 8mg Suboxone, a schedule III narcotic.
In the kitchen, under the kitchen sink was found a Power House Bowl
Cleaner with a false bottom containing four apple ziploc bags each filled with
numerous empty ziploc bags; also found in a kitchen drawer was a black and silver
digital scale with residue from a white powder substance, and a razor blade with
residue from a white powder substance. In the dining room,the police recovered a
book "The Scarpetta Factor" with a false center containing six thousand dollars
($6,000.00) in U.S currency and two round white pills, identified as Oxycodone/
Acetaminophen, a schedule II narcotic. Located in the first floor coat closet were a
black and silver digital scale with residue from a white powder substance and one
box of 9mm ammunition. In the second floor front bedroom closet was located a
Ruger box containing one fully loaded black and purple .380 auto hand gun and US
mail addressed to Marcus Green.
After a jury trial held on February 1, 2017, the Defendant was convicted of
2
54
three counts of Possession of a Controlled Substance', two counts of Conspiracy to
Possess a Controlled Substance'', three counts of Possession of Drug Paraphernalia'
and one count of Possession of a Firearm by Prohibited Persons.4 This timely
appeal followed sentencing.
II. DISCUSSION
In his 1925(b) statement the Defendant raises numerous allegations of error.
Each is addressed below.
Defendant challenges the sufficiency of the evidence to support convictions
for the offenses of Possession of a Controlled Substance, Possession of Drug
Paraphernalia, Conspiracy to commit Possession and Possession of a Firearm
5
Prohibited.
A c.laim challenging the sufficiency of the evidence is a question oflaw.
Commonwealth v. Strouse, 2006 Pa. Super. 273, 909 A.2d 368 (2006);
Commonwealth v. Dale, 2003 Pa. Super. 413, 836 A.2d 150 (2003). When
reviewing a challenge to the sufficiency of the evidence to support a conviction, the
1
35 P.S. Section 780-113 -A16.
2
18 P.S. Section 903.
3
35 P.S. Section 780-113 - A32.
4
18 P.S. Section 6105 - Al.
5
See Paragraph 3 of Defendant's 1925(b) Statement.
3 55
-
r
court must determine whether the evidence was sufficient to enable the trier of fact
to find every material element of the crime charged and the commission thereof by
the accused, beyond a reasonable doubt, viewing the evidence and the reasonable
inferences therefrom in a light most favorable to the Commonwealth, as the verdict
winner. Commonwealth v. Strouse, supra; Commonwealth v. Dale, supra. (See also
Commonwealth v. McCloskey, 2003 Pa. Super. 409, 835 A.2d 801 (2003);
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000)).
The Commonwealth may sustain its burden by proving the crime's elements
with evidence which is entirely circumstantial and the trier of fact, who determines
credibility of witnesses and the weight to give evidence produced, is free to believe
all, part, or none of the evidence. Commonwealth v. Jette, 818 A.2d 533, 534 (Pa.
Super 2003)
The Superior Court may not substitute its judgment for that of the finder of
fact. Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000). If the fact finder
reasonably could have determined from the evidence adduced that all of the
necessary elements of the crime were established, then that evidence will be
deemed to support the verdict. Commonwealth v. Wood, 432 Pa. Super. 183, 637
A.2d 1335 (1994). The standard applies equally to cases in which the evidence is
circumstantial, rather than direct, as long as the evidence as a whole links the
accused to the crime charged beyond a reasonable doubt. Commonwealth v.
4 56
Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988); Commonwealth v. Swerdlow, 431
Pa. Super. 453, 636 A.2d 1173 (1994). Additionally, mere conflicts in the testimony
of the witnesses do not render the evidence insufficient. Commonwealth v. Moore,
436 Pa. Super. 495, 648 A.2d 331 (1994). Issues of credibility are left to the finder
of fact, who is free to accept all, part, or none of a witness's testimony.
Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995); Commonwealth v.
Valette, 531 Pa. 384, 388, 613 A.2d 548 (1992); Commonwealth v. Simmons, 541
Pa. 211, 662 A.2d 621 (1995); Commonwealth v. Kelley, 444 Pa. Super. 377, 664
A.2d 123 (1995); Commonwealth v. Lytle, 444 Pa. Super. 126, 663 A.2d 707(1995). The facts and circumstances established by the Commonwealth need not
preclude every possibility if innocence. Questions of doubt are for the finder of
fact, unless the evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the totality of the circumstances.
Commonwealth v. Cassidy, 447 Pa. Super. 192, 668 A.2d 1143 (1995);
Commonwealth v. Govens, 429 Pa. Super. 464, 488, 632 A.2d 1316 (1993), alloc.
den., 539 Pa. 675, 652 A.2d 1321 (1994). Only when the evidence offered to
support the verdict is in contradiction to the physical facts, or in contravention to
human experience and the laws of nature, can the evidence be considered
insufficient as a matter of law. Commonwealth v. Widmer, supra. Under this
standard, the evidence was more than sufficient to sustain Defendant's convictions.
57
5
Initially, it must be noted that in his 1925(b) statement, the Defendant does
not specify which element of the charges the Commonwealth has failed to prove.
When an appellant is challenging the sufficiency of the evidence on appeal, their
1925 statement "must specify the element or elements upon which the evidence was
insufficient" so as to preserve the issue for appeal. Commonwealth v. Flores, 921
A.2d 517, 522-523 (Pa. Super. 2007); see also Commonwealth v. Lemon, 804 A.2d
34, 37 (Pa. Super. 2002) (holding that a defendant's concise statement is inadequate
where bald statements of insufficiency are advanced without further argument).
That is particularly important when an appellant is challenging multiple convictions
with several elements that must be proven by the Commonwealth. Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009); Commonwealth v. Williams, 959
A.2d 1252, 1258 (Pa. Super. 2008).
The purpose of Rule l 925(b) of the Pennsylvania Rules of Appellate
Procedure is to facilitate the preparation of a trial court opinion, to allow
meaningful appellate review of issues, and to promote the certainty, consistency,
and fairness which arise when all parties are equally obligated to meet procedural
rules. Commonwealth v. Flores, supra. If a party wishes to preserve a claim that the
evidence was insufficient, then the 1925(b) statement needs to specify the element
or elements upon which the evidence was insufficient. Id Defendant has failed to
state what particular element of each offense for which there was insufficient
58
6
evidence.
This Court declines Defendant's invitation to scourer through the
record to pinpoint each fact supporting Defendant's multiple convictions. In this
case, however, there is overwhelming evidence supporting Defendant's convictions.
Apparently Defendant challenges his convictions for every item of contraband he
was convicted of possessing or conspiring to possess that were not found on his
person.
When the contraband is not found on the defendant's person, then the
Conunonwealth must satisfy its burden by proof of constructive possession. The
Supreme Court has defined constructive possession as "the ability to exercise a
conscious dominion over the illegal substance: the power to control the contraband
and the intent to exercise that control." Commonwealth v. Macolino, 469 A.2d 132,
134 (Pa. 1983). In Macolino, the Supreme Court further determined that "An intent
to maintain a conscious dominion may be inferredfrom the totality of the
circumstances .... [and], circumstantial evidence may be used to establish a
defendant's possession of drugs or contraband." Macolino, 469 A.2d at 134.
"Constructive possession is an inference arising from a set of facts that possession
of the contraband was more likely than not." Mudrick, 507 A.2d at 1213.
Physical proximity to the controlled substance is a factor that may
demonstrate constructive possession. Commonwealth v. Petteway, 847 A.2d 713,
7 59
(Pa.Super.2004 ). Furthermore, the Conunonwealth can establish constructive
possession of drug contraband by evidence of a defendant's access to the
contraband. Commonwealth v. Ocasio, 619 A.2d 352, 354 (Pa. Super. 1993).
The jury as the fact finder determined that the Defendant constructively
possessed or jointly constructively possessed with Monique Edwards the drugs and
drug paraphernalia found in the common areas of their residence. It should be noted
that the jury acquitted the Defendant of possession of the drugs found in Ms.
Edwards' purse. As to the gun, at trial, the Defendant presented a witness who
claimed ownership of the gun. The Commonwealth presented evidence that the gun
was located in Defendant's bedroom closet under a stack of his mail. As noted
above, issues of credibility are left to the finder of fact, who is free to accept all,
part, or none of a witness's testimony. Based on the evidence presented at trial, the
totality of the circumstances, taken in the light most favorable to the
Commonwealth as verdict winner, was sufficient to sustain Defendant's
convictions.
Defendant argues that this Court abused its discretion by denying mm
opportunity to cross-examination the affiant of the search warrant, to test the
truthfulness of the recitals in the search warrant.6 Specifically, the Defendant
6
See Paragraph 1 of Defendant's l 925(b) Statement.
60
8
wanted to cross examine the affiant about her interactions with the confidential
informant (CI). The only reason the Defendant could articulate for this request was
. he hoped of finding information that would discredit the reliability of the CI. The
Commonwealth responded by submitting the search warrant into evidence and
argued that probable cause for the warrant was contained in the four comers of the
warrant. See N.T. 11/12/2015 pp. 23-24. Although the Defendant denied he was
seeking the disclosure of the identity of the CI, his request to cross examine the
affiant about the CI was aimed in that direction. At no time did the Defendant make
any showing of how the Cl's identity would be useful to his defense.
The identity of a confidential informant is privileged information, which the
Commonwealth may decline to disclose without making any showing whatsoever.
Under limited circumstances, disclosure may be allowed. See Commonwealth v.
Bing, 713 A.2d 56, 58 (Pa. 1998). The safety of the confidential informant is the
controlling factor. Id. Accordingly, the privilege must be honored unless and until
the defendant demonstrates, pursuant to Pa.R.Crim.P. 573(B), that his request for
disclosure of the informant's identity is reasonable and the informant has
information that is material to the preparation of the defense. See Commonwealth v.
Roebuck, 681 A.2d 1279, 1283 (Pa. 1996). Only if the defendant meets that
threshold showing must the trial court balance the need for the informant's
testimony against the public interest in effective law enforcement and the safety of
61
9
the informant. Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (because
Marsh failed to make the threshold showing, "his motion should have been rejected
without any consideration of the other factors necessary to make a balanced
evaluation"). Accord Commonwealth v. Belenky, 777 A.2d 483, 487 (Pa. Super.
2001); In thelnterestofR.S., 847 A.2d 685, 688 (Pa. Super. 2004).
Mere "allegations alone do not supplant the need to make an actual
evidentiary showing." Marsh, 997 A.2d at 322. Rather, defendant must lay an
evidentiary foundation that the informant has information useful to his defense.
Commonwealth v. Herron, 380 A.2d 1228, 1231 (Pa. 1977) (defendant should make
an offer of proof indicative of the defense to which confidential informant's
testimony might be useful); Commonwealth v. Eicher, 605 A.2d 337, 348 (Pa.
Super. 1992) (appellant seeking disclosure of informant must have "concrete
evidence" corroborating defense theory "other than his own self-serving
allegations;" absent "more specific evidence," the trial court is not required to
compel disclosure and allow defense to conduct fishing expedition).
Furthermore, in the case at bar, the informant was not a witness. An
eyewitness is one who observed the criminal act and can testify about it. Defendant
was not charged with selling or delivering drugs to the informant, He was charged
for the possession of the drugs and drug paraphernalia recovered from his home.
The informant was not a witness to the recovery of any of the contraband. See
62
10
Commonwealth v. Iannaccio, 480 A.2d 966 (Pa. 1984) (identity of confidential
informant whose tip was used in support of search warrant not discoverable under
rules of discovery where confidential informant was not eyewitness to crimes
charged). See also Commonwealth v. Hritz, 663 A.2d 775, 777-778 (Pa.Super.
1995) ( appellant was charged with possession with intent to deliver marijuana,
possession of marijuana and possession of drug paraphernalia based on items
recovered during a search of his house during which the informant was not present;
informant not a "witness"),
Where, as here, the defendant is seeking the identity of an informant for the
purpose of attacking the police officer's credibility and probable cause, in order to
satisfy his initial burden, the defendant must demonstrate: 1) a good faith basis for
believing the officer willfully misrepresented the existence of the informant or the
information conveyed by the informant; 2) without the information from the
informant, no probable cause existed; and 3) production of the informant is the
only means of substantiating his claim. Commonwealth v. Bonasorte, 486 A.2d
1361 (Pa.Super. 1984) at 1373-1374. Defendant did not come close to satisfying his
threshold burden. In fact, his own admission defeats his claim. "We are not saying
officers are lying, we are saying we need to make sure they are honest, we need to
make sure they are truthful." N.T. 11/12/2015 pp. 19-20. Additionally, in this case
the officers observed the Defendant make three controlled buys which standing
63
11
alone would establish probable cause to issue the warrant. Defendant's argument
that he was prejudiced by this Court's ruling lacks merit.
Defendant next alleges this Court erred by permitting Officer McAleer and
Sergeant Bernhardt to testify at trial about drug distribution with.respect to the drug
paraphernalia seized from Defendant's residence.7 "The admissibility of expert
testimony is within the sound discretion of the trial court and will not be reversed
absent an abuse of discretion." Commonwealth v. Petrovich, 648 A.2d 771, 772 (Pa.
1994 ). An abuse of discretion "may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, or ill-will, or such lack of support so as to
be clearly erroneous." Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007);
Grady v. Frito-Lay. Inc., 839 A.2d 1038, 1046 (Pa. 2003). It is well settled that
"expert testimony is admissible in all cases, civil and criminal alike, when it
involves explanations and inferences not within the range of ordinary training,
knowledge, intelligence and experience." Commonwealth v. Nasuti, 123 A.2d
435,438 (Pa. 1956).
Since it is "well established that all the facts and circumstances surrounding
possession are relevant in making a determination of whether contraband was
possessed with the intent to deliver," the Superior Court has consistently held that
7
See Paragraph 2 of Defendant's 1925(b) Statement.
64
12
" [ e]xpert testimony is admissible concerning whether the facts surroul!ding the
possession of controlled substances are consistent with an intent to deliver rather
than with an intent to possess it for personal use. rr Commonwealth v. Ariondo, 580
A.2d 341, 350-51 (Pa. Super. 1990) (collecting cases; citations omitted). In
particular, expert testimony is admissible to inform jurors of the modus operandi of
the drug trade, just as it is admissible to illustrate any relevant but obscure area of
knowledge. Commonwealth v. Davenport. 452 A.2d 1058, 1062, 1063 n.l (Pa.
Super. 1982.) Based on the foregoing, this Court's ruling to allow the officers to
testify as experts was not an abuse of discretion.
Next, the Defendant alleges this Court improperly denied jury instructions to
the Defense of Authorization to possess the single pill found on his person. 8
"A defendant is entitled to an instruction on any recognized defense which
has been requested, which has been made an issue in the case, and for which there
exists evidence sufficient for a reasonable jury to find in his or her favor."
Commonwealth v. Weiskerger, 554 A.2d 10, 14 (Pa. 1989); Pa.R.Crim.P. 1119.
In this case, the Defendant presented no competent evidence that he had a
prescription for the pill other than his own self-serving testimony. Therefore, this
Court properly refused to give the authorization instruction.
8
See Paragraph 4 of Defendant's 1925(b) Statement.
65
13
Defendant next argues his 5th Amendment right to remain silent was violated
when Sergeant Bernhardt testified that he attempted to speak with Defendant
regarding the items in the residence, and that Defendant told Sergeant Bernhardt "to
go pound sand. "9 The Commonwealth did not elicit this testimony. It was offered
in response to defense counsel's cross examination. Defense Counsel: "Did you
interview my client in any way and ask him any questions about any of the items
present inside the house?" Sergeant Bernhardt: "So, I attempted to and that's when I
was told to go pound sand." N.T. 2/1/2017 p 28 I. 9-13. Defendant's contention is
meritless.
Defendant's next complaint is this Court erred by not granting his Motion to
Quash as the result of the Commonwealth failing to establish a prima facie case at
the preliminary hearing. 10
A preliminary hearing is not a mini-trial and a preliminary hearing judge is
not a trier of fact. The limited function of a preliminary hearing "is not to prove
defendant's guilt." Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.Super,
2004), quoting Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa.Super. 1991)
( emphasis in original); accord Commonwealth v. Cordoba, 902 A.2d 1280, 1285
(Pa.Super. 2006). Rather, "the question is whether the prosecution must be
9
See Paragraph 5 of Defendant's 1925(b) Statement.
10
See Paragraph 6 of Defendant's 1925(b) Statement.
66
14
dismissed because there is nothing to indicate that the defendant is connected with a
crime." Commonwealth v. Meder, 611 A.2d 21, 216 (Pa.Super, 1992, alloc. denied,
622 A.2d 1375 (Pa. 1993), quoting Commonwealth v. Rick, 366 A.2d 302, 303-04
(Pa.Super. 1976). A prima facie case exists where the Commonwealth produces
evidence of each of the material elements of the charged crime and establishes
probable cause that defendant committed it. Commonwealth v. Karetny, 880 A.2d
505, 514 (Pa. 2005).
The court must accept as true all evidence and all reasonable inferences
therefrom, that would warrant a judge allowing the case to go to the jury.
Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003); Commonwealth v.
Williams, 911 A.2d 548, 550-51 (Pa.Super. 2006). Credibility determinations, as
well as the ultimate determination of the sufficiency of the evidence, are exclusively
for the factfinder at trial. Commonwealth v. Jury, 636 A.2d 164, 169 (Pa.Super.
1993); Commonwealth v. Lodise, 419 A.2d 561, 564 (Pa.Super. 1980). The failure
to view the evidence in the light most favorable to the Commonwealth in assessing
the existence of a prima facie case is a reversible error. Commonwealth v. Mcbride,
595 A.2d 589, 592 (Pa. 1991); Commonwealth v. Hendricks, 927 A.2d 289, 291
(Pa.Super. 2007); Commonwealth v. Williams, 911 A.2d at 550-51.
At a preliminary hearing the Commonwealth need only produce evidence of
constructive possession and establish probable cause that defendant committed it
67
15
based on reasonable inferences and circumstantial evidence. Commonwealth v.
McBride, 595 A.2d 589, 592 (Pa. 1991). In this case, the evidence presented at the
preliminary hearing, along with the reasonable inferences therefrom, viewed in the
light most favorable to the Commonwealth, clearly was sufficient to establish a
prima facie case against the Defendant.
Defendant's last assignment of error is the Court erred by permitting the
admission of Exhibit 36A, a staged police department photograph of the evidence
seized from the premises, because the exhibit violated Pennsylvania Rules of
Evidence 401 and 403 and prejudiced the Defendant. 11
The admissibility of evidence is a matter for the discretion of the trial court
and a ruling will only be reversed on an abuse of discretion. Commonwealth v.
Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014). "A conclusion that the trial court
abused its discretion 'requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill will, or such lack of support so as to be clearly erroneous."
Commonwealth v. Spatz, 47 A.3d 63, 122 (Pa. 2012) (citing Commonwealth v.
Travaglia, 28 A.3d 868, 873 874 (Pa. 2011)). In determining whether evidence
should be admitted, the trial court must weigh the relevance and probative value of
the evidence against the prejudicial impact of the evidence. Id. Evidence is relevant
if it "has a tendency to make a fact more or less probable than it would be without
68
16
the evidence and the fact is of consequence in determining the action." Pa.R.E. 401.
Pennsylvania Rules of Evidence 403 states that "[t]he court may exclude relevant
evidence if its probative value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.
Defendant does not state how the introduction of this evidence prejudiced
him hampering this Court's ability to address his specific concern. However, each
item depicted in the photograph was admitted into evidence and published to the
jury at trial. It is difficult to construe how a photograph of the same items admitted
into evidence at trial prejudiced Defendant anymore that the admission of the
original items. Defendant's claim lacks merit.
III. CONCLUSION
For the foregoing reasons, the Judgment of Sentence should be affirmed.on
-
,� ·
a,
_.J
c...-
appeal. s
,
,,-p- ..
t l t
-�
..e-- .... -,.
\...;:..
BY THE COURT:
11 ·
See Paragraph 7 of Defendant's 1925(b) Statement.
69
17