Com. v. Stevens, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TRAYMERE EDWARD STEVENS :
:
Appellant : No. 3442 EDA 2019
Appeal from the Amended Judgment of Sentence
Entered November 25, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004892-2018
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 19, 2020
Appellant, Traymere Edward Stevens, appeals from the November 25,
2019 amended judgment of sentence,1 imposing an aggregate sentence of 48
to 96 months’ incarceration after a jury convicted Appellant of possession of
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* Retired Senior Judge assigned to the Superior Court.
1 The trial court entered its judgment of sentence on November 7, 2019, but
failed to include credit for time served. Thereafter, the trial court amended
the judgment of sentence on November 25, 2019, to include credit for time
served. See 42 Pa.C.S.A. § 5505 (permitting a trial court to amend the
judgment of sentence within 30 days after its entry if no appeal of such order
has been taken). A direct appeal in a criminal case properly lies from an
amended judgment of sentence where the amended sentence is imposed by
a court of competent jurisdiction. See Commonwealth v. Garzone, 993
A.2d 1245, 1254 n.6 (Pa. Super. 2010), relying on Commonwealth v.
Wesley, 889 A.2d 636 (Pa. Super. 2005). Appellant’s appeal, therefore,
properly lies from the November 25, 2019 judgment of sentence. The case
caption has been corrected accordingly.
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a controlled substance (heroin/fentanyl) with the intent to deliver, criminal
conspiracy to possess a controlled substance with the intent to deliver, and
tampering with physical evidence.2 We affirm.
The trial court summarized the factual history as follows:
On March [28], 2018[,] at approximately 4:30 [p.m., Trooper
Matthew Brennan, a patrol member of the Pennsylvania State
Police stationed at Troop K, Media Barracks in Delaware County,
Pennsylvania,] was on patrol in the area of [U.S. Interstate
Highway 95] (“I-95”) near mile-marker 10.6. He was in full
uniform [and] in a marked patrol unit. At that time, he was
conducting a stationary patrol during rush hour. As he was facing
southbound traffic, he observed a blue 2002 Chrysler minivan with
a paper temporary registration, flapping up and down. Because
he was unable to see the registration due to the movement of the
unsecured temporary tag, Trooper Brennan decided to conduct a
traffic stop on the vehicle. Approximately a mile north of Exit 8,
Trooper Brennan initiated the traffic stop. The vehicle took 54
seconds to stop. During that time[,] Trooper Brennan observed
an individual in the rear passenger row of the minivan shoving
things in the ceiling area. The passenger reached up on three
separate occasions. These actions raised Trooper Brennan's
suspicion that the individual was concealing something in the
vehicle. The vehicle eventually stopped on the right shoulder of
Stewart Avenue, just off the Exit 8 ramp. Trooper Brennan
approached the stopped vehicle on the passenger side. The [front
passenger side] window was down[,] and Trooper Brennan could
see into the passenger compartment. Trooper Brennan made
contact with the front passenger[,] who he could see clearly from
a distance of about one foot. Trooper Brennan made an in-court
identification of [Appellant] as the individual seated in the front
passenger seat. Trooper Brennan asked how he was doing.
[Appellant] turned towards Trooper Brennan and asked him how
he was doing. During their interaction[,] which lasted from 10 to
30 seconds, [Appellant] had his face towards Trooper Brennan.
When [Appellant] would not show Trooper Brennan his left hand,
Trooper Brennan attempted to [remove Appellant from] the
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2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 903 and 4910, respectively.
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vehicle for officer safety reasons. At that point[,] Trooper
[Brennan reached into the vehicle with his left arm through the
passenger side window of the vehicle]. The driver then fled at a
high rate of speed as Trooper [Brennan was reaching into the
vehicle with his left arm]. Trooper Brennan immediately ran back
to his patrol vehicle and pursued the Chrysler minivan. The [two
vehicles] engaged in a high-speed chase. Trooper Brennan briefly
lost sight of the [minivan] as it sped away from him and turned
right onto Sellers Avenue. Once [Trooper Brennan turned his
vehicle onto Sellers Avenue,] Trooper Brennan observed the
[minivan] for the [remainder] of the pursuit. Trooper Brennan
testified about the details of the pursuit with references to maps
and narrated a video recording of the chase made by the [mobile
video recording (“MVR”)] system in his patrol unit. After the
vehicle chase, Trooper Brennan was able, with the aid of local
police, to stop the [minivan] and apprehend the driver. When the
[minivan] was finally stopped, the only occupant [in the vehicle]
was the driver, a female. The male passenger was not in the
vehicle. Trooper Brennan then radioed [] a brief description of the
front passenger to supporting [police] units [in the surrounding
area]. Trooper Brennan radioed [that] the suspect was a black[,]
non-Hispanic male wearing jeans. Shortly after the vehicle pursuit
terminated, Trooper Brennan was notified by a fellow member of
[the] state police that a pedestrian[-]stop had been made in the
area of Seller[s] Avenue and Chester Pike [involving] an individual
matching the brief description [Trooper Brennan provided].
Trooper Brennan traveled to that location and immediately knew
the individual that was stopped was not [the passenger he
observed in the minivan]. The pedestrian [] told Trooper Brennan
he observed the [police] pursuit [of the minivan]. [The
pedestrian] observed a black male toss what appeared to be
heroin out [of] the front passenger window of the minivan. [The
pedestrian] knew it was heroin because [he] said he is a user of
heroin and is familiar with the packaging. [The pedestrian
retrieved] the heroin [that had been tossed out of the minivan’s
window].
Approximately 25 bundles [of heroin], with a bundle being about
13 bags [of heroin] each, was [recovered from the pedestrian’s]
person at the time he was stopped. Trooper Brennan[,] and other
officers[,] conducted a further search of the area. In the area of
the pedestrian[-]stop at Chester Pike and Sellers Avenue,
approximately 1,370 baggies of heroin were recovered, 970 were
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stamped "Walk Hard" and the remaining 390 were stamped
"Gorilla."
A search[, pursuant to a warrant,] was conducted on the
[minivan] and an additional 975 baggies [of heroin,] stamped
"Walk Hard"[,] were seized from the [minivan]. The markings on
these bags [were] consistent with the markings [on the bags of
contraband] recovered from the pedestrian and from the street
the day of the incident. Several [cellular telephones] were also
recovered from the vehicle. As part of Trooper Brennan's
investigation, he relayed information to other law enforcement
agencies about a wanted suspect and the arrest of [the driver].
On April 6, 2018[,] Trooper Brennan was contacted by a narcotics
detective with the Dover, Delaware Police Department. The
detective heard through law enforcement channels that [the
driver] was picked up on drug charges. He had an idea who the
male occupant [was] that fled the scene[.] The detective sent
Trooper Brennan a [photograph] of [Appellant]. As soon as
[Trooper Brennan] saw the photograph, [he] was able to
positively identify [the minivan passenger] as [Appellant].
Through later investigation, Trooper Brennan was able to
determine [that] one of the [cellular telephones] found on the
floor of the minivan belonged to [Appellant]. There were []
pictures and videos of [Appellant] on that [cellular telephone,] as
well as text messages concerning drug sales.
Trial Court Opinion, 3/17/20, at 1-5 (extraneous capitalization and record
citations omitted).
The record demonstrates that on April 9, 2019, Appellant was charged
with, inter alia, the aforementioned crimes. Appellant filed a motion to
suppress, inter alia, the pre-trial photographic identification of Appellant,
which the trial court denied on May 9, 2019. On August 1, 2019, a jury found
Appellant guilty of the aforementioned crimes. On November 7, 2019, the
trial court imposed a sentence of 24 to 48 months’ incarceration for the
conviction of possession of a controlled substance with the intent to deliver
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and a consecutive sentence of 24 to 48 months’ incarceration for the criminal
conspiracy conviction. Appellant was also ordered to serve two years’
probation, which was to run consecutive to his aggregate sentence of 48 to
96 months’ incarceration.3 The trial court amended the judgment of sentence
on November 25, 2019, to include credit for time served. On December 3,
2019, Appellant filed a notice of appeal.4
Appellant raises the following issues for our review:
[1.] Whether the trial court erred in failing to grant Appellant's
motion to suppress the controlled substances because the
seizure was affected in the absence of reasonable suspicion?
[2.] Whether the trial court erred in failing to grant Appellant's
motion to suppress the controlled substances because the
search and arrest [were] affected in the absence of probable
cause?
[3.] Whether the trial court erred in failing to grant Appellant's
motion to suppress the controlled substances and his motion
for extraordinary relief because the photographic
identification of Appellant made by Trooper Brennan was
unduly suggestive?
[4.] Whether the evidence was insufficient to support the
conviction of possession with intent to deliver because
possession was not proven beyond a reasonable doubt?
[5.] Whether the trial court erred in charging the jury on
consciousness of guilt when identification was at issue?
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3We note that the trial court misstated Appellant’s sentence as an aggregate
sentence of two to four years’ (24 to 48 months’) incarceration followed by a
consecutive term of two years’ probation. Trial Court Opinion, 3/17/20, at 1.
4 Appellant and the trial court complied with Pa.R.A.P. 1925.
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[6.] Whether the trial court erred when it denied [A]ppellant's
motion that it charge the jury on identification with standard
jury instruction 4.07?
[7.] Whether the trial court erred when it stated at sentencing
that Appellant was not RRRI eligible?
[8.] Whether the sentence was illegal because the trial court
failed to properly consider the statutory factors in the
Sentencing Code before it imposed sentence?
Appellant’s Brief at 12-13 (extraneous capitalization omitted).
In his first three issues, Appellant challenges the trial court’s denial of
his motion to suppress, which allegedly sought to suppress both the physical
evidence, as well as the pre-trial photographic identification of Appellant as
the passenger in the vehicle. Id. at 12, 25-30. Appellant contends that the
trial court erred in not suppressing the physical evidence obtained, specifically
the contraband, on the grounds that Trooper Brennan lacked reasonable
suspicion to justify the traffic stop and lacked probable cause to justify what
Appellant characterized as an arrest when Trooper Brennan reached his left
arm into the vehicle in an alleged attempt to remove the passenger from the
vehicle. Id. at 25-30. Appellant asserts that Trooper Brennan’s identification
of Appellant as the passenger in the vehicle was the result of an unduly
suggestive procedure in which Trooper Brennan identified Appellant as the
passenger after receiving a single photograph of Appellant from another law
enforcement officer. Id. at 12.
A review of the record demonstrates that Appellant, in his motion to
suppress, sought “to suppress the identification of [Appellant] committing this
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crime” on the basis that “the identification [was] the product of a suggestive
procedure, such that undermines the reliability, giving rise to a substantial
likelihood of misidentification amounting to a violation of due process.”
Appellant’s Motion to Suppress Identification, 1/28/19, at unnumbered pages
1 and 3. At the suppression hearing, Appellant’s counsel, when asked to state
on the record with specificity and particularity, the items that Appellant was
seeking to suppress, stated, “this is our motion to suppress the
out[-]of[-]court identification of [Appellant,] as well as the search -- any items
recovered from the search of [cellular telephones recovered from the vehicle]
that was involved in this incident.” N.T., 3/29/19, at 3. Appellant failed to
request, either in his written motion to suppress or verbally at the suppression
hearing, the suppression of the illegal contraband, specifically the heroin,
obtained as the result of the circumstances surrounding the traffic stop of the
vehicle and subsequent search of the vehicle pursuant to a warrant. See
Pa.R.Crim.P. 581(D) (stating, “[t]he motion shall state specifically and with
particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof”). Therefore,
Appellant waived his first three issues concerning the suppression of the illegal
contraband because he failed to raise these issues with the trial court in his
motion to suppress and cannot raise the issues for the first time with this
Court. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the [trial] court
are waived and cannot be raised for the first time on appeal”); see also
Pa.R.Crim.P. 581(B) (stating that issues not raised in a timely motion to
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suppress are waived); Commonwealth v. Freeman, 128 A.3d 1231, 1242
(Pa. Super. 2015) (holding that a defendant waives any claim of error on
appeal regarding the failure to suppress evidence when the defendant fails to
request the suppression of the specific evidence with the trial court in a motion
to suppress).
Appellant additionally claims, in his third issue, that the trial court failed,
as a matter of law, to suppress Trooper Brennan’s pre-trial identification of
Appellant as the passenger in the vehicle based upon Trooper Brennan’s
subsequent receipt of a single photograph of Appellant from a fellow law
enforcement officer. Appellant’s Brief at 39.
An appellate court’s standard of review and scope of review of a
challenge to the denial of a suppression motion is well-settled.
An appellate court's standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. [When] the
Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court's factual findings are
supported by the record, the appellate court is bound by
those findings and may reverse only if the [suppression]
court's legal conclusions are erroneous. Where the appeal
of the determination of the suppression court turns on
allegations of legal error, the suppression court's legal
conclusions are not binding on the appellate court, whose
duty it is to determine if the suppression court properly
applied the law to the facts. Thus, the conclusions of law of
the [suppression] court are subject to plenary review.
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Commonwealth v. Hoppert, 39 A.3d 358, 361-[3]62
(Pa. Super. 2012).
Moreover, “appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.” Commonwealth v.
Stilo, 138 A.3d 33, 35-36 (Pa. Super. 2016)[.]
Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019) (original
brackets and ellipsis omitted), appeal denied, 2020 WL 4188234 (slip copy)
(Pa. Filed July 21, 2020).
Whether a pre[-]trial identification should be suppressed as
unreliable is determined from the totality of the circumstances. A
pre[-]trial identification will not be suppressed unless the facts
demonstrate that the identification procedure was so infected by
suggestiveness as to give rise to a substantial likelihood of
irreparable misidentification.
Commonwealth v. Cousar, 154 A.3d 287, 306 (Pa. 2017) (citations
omitted).
Here, Appellant argues that Trooper Brennan’s “ability to see the
[individual in the front passenger seat of the vehicle] and remember his look
was compromised” during the initial traffic stop, including Trooper Brennan’s
failure to observe whether the individual had a facial birthmark the same as
the one on Appellant’s face, because of the “high-energy” nature of the
encounter. Appellant’s Brief at 39. Appellant asserts that Trooper Brennan’s
identification of Appellant as the passenger of the vehicle was based upon a
single photograph of Appellant supplied by another law enforcement officer
and that the use of a single photograph was unduly suggestive. Id. Appellant
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contends that despite Trooper Brennan’s status as a law enforcement officer,
a photo-array should have been presented to Trooper Brennan. Id.
In denying Appellant’s motion to suppress the pre-trial photographic
identification of Appellant by Trooper Brennan, the trial court made the
following findings of fact pertinent to Appellant’s issue:
4. Trooper Brennan approached the vehicle from the passenger
side. The passenger side window was down. Trooper
Brennan made contact with the front passenger[,] who he
could see clearly from a distance of about one foot.
5. Trooper Brennan made an in-court identification of
[Appellant] as the passenger.
6. During an interaction that lasted from 10 to 30 seconds
[Appellant] looked directly at Trooper Brennan. . . .
13. As part of Trooper Brennan's investigation, he relayed
information to other law enforcement agencies about a
wanted suspect and the arrest of [] the driver of the vehicle[.]
14. On April 6, 2018, Trooper Brennan was contacted by a
detective with the Dover, Delaware Police Department who
heard through law enforcement channels that [the driver]
was arrested on drug related charges and that Trooper
Brennan was looking for a male who was not arrested at the
scene. The detective believed he knew who the male was.
He sent a [photograph] of the male to Trooper Brennan. From
the photograph, Trooper Brennan was able to positively
identify [the minivan passenger] as [Appellant].
15. [The trial court] finds [that] the photograph sent to Trooper
Brennan by the Dover Police Department was neither
suggestive nor conducted in a suggestive manner.
16. [The trial court] finds the testimony of Trooper Brennan to be
credible.
Order Denying [Appellant’s] Motion to Suppress, 5/9/19, at 2, 4-5 (record
citations omitted). The trial court concluded,
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Initially, [the trial court finds,] under the totality of the
circumstances, [that] the Dover Police Department[’s] sending a
photograph to Trooper Brennan of a person who might be of
interest in his investigation was neither unduly suggestive nor
conducted in a suggestive manner. It was simply good police
work. No other information was relayed to Trooper Brennan[,
including information that the person depicted in the photograph]
was definitely the suspect. Identification of the person in the
photograph was left to Trooper Brennan.
Id. at 6 (citations omitted).
Here, a review of the record demonstrates that Trooper Brennan, as part
of his investigation, requested information pertaining to the identity of a black,
non-Hispanic male who was wanted as a suspect on drug related charges in
connection with an incident involving a March 28, 2018 traffic stop of a vehicle
operated by another individual.5 N.T., 3/29/19, at 17-18. A detective with
the Dover, Delaware Police Department was familiar with the driver and
Appellant, who he believed were dating, based upon his police work in the
Dover, Delaware area. Id. at 18, 33. In response to Trooper Brennan’s
request for information on the suspect’s identity, the detective provided
Trooper Brennan with a photograph of Appellant, which Trooper Brennan used
to confirm that Appellant was the passenger in the vehicle. Id. at 18. Upon
receipt of the photograph, Trooper Brennan was immediately able to positively
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5 In his communication with other law enforcement officers, Trooper Brennan
identified the driver by full name.
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identify the person in photograph as the same person he observed as the
passenger in the front seat of the vehicle. Id.
We are unpersuaded by Appellant’s argument6 that a photo-array was
necessary to allow Trooper Brennan to properly identify Appellant as the
vehicle’s passenger when Trooper Brennan was acting in his capacity as the
investigating law enforcement officer in a criminal investigation. Law
enforcement officers regularly share information in the course of their criminal
investigations to aid other officers in quickly identifying suspects.7 Based upon
a totality of the circumstances, we concur with the trial court that the use of
a single photograph of Appellant was not unduly suggestive in Trooper
Brennan’s pre-trial identification of Appellant as the vehicle’s passenger. See
Commonwealth v. Johnson, 139 A.3d 1257, 1278 (Pa. 2016) (stating, “[a]
pre-trial identification violates due process only when the facts and
circumstances demonstrate that the identification procedure was so
impermissibly suggestive that it gave rise to a very substantial likelihood of
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6 Appellant fails to cite any legal authority in support of his argument. See
Commonwealth v. Martz, 232 A.2d 801, 811 (Pa. Super. 2020) (stating,
that development of a meaningful argument, in an appellate brief, includes
citation to relevant, legal authority in support of the claim).
7 Justice Kennedy, writing for the United States Supreme Court in Maryland
v. King, noted that by 1900 “it had become the daily practice of the police
officers and detectives of crime to use photographic pictures for the discovery
and identification of criminals [and] the courts likewise had come to the
conclusion that it would be a matter of regret to have its use unduly restricted
upon any fanciful theory or constitutional privilege.” Maryland v. King, 569
U.S. 435, 457 (2013) (citations, original brackets, and original quotation
marks omitted).
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irreparable misidentification” (citation omitted)). Therefore, Appellant’s issue
is without merit.
In his fourth issue, Appellant claims the evidence was insufficient to
support his conviction for possession of a controlled substance with the intent
to deliver because the Commonwealth allegedly failed to prove, beyond a
reasonable doubt, that Appellant possessed the controlled substance.
Appellant’s Brief at 31-34. In addressing a sufficiency claim, our standard of
review and scope of review are 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 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 proof or 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 the evidence actually
received must be considered. Finally, the trier[-]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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). To preserve a
sufficiency claim, Appellant’s Rule 1925(b) statement must specify the
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element or elements upon which the evidence was insufficient.
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).
In order to sustain a conviction for possession of a controlled substance
with the intent to deliver, pursuant to Section 780-113(a)(30) of The
Controlled Substance, Drug, Device and Cosmetic Act, “the Commonwealth
must prove beyond a reasonable doubt that the defendant possessed a
controlled substance and did so with the intent to deliver it.” Commonwealth
v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation omitted); see
also 35 P.S. § 780-113(a)(30). When the defendant does not have actual
possession of the controlled substance, i.e. the contraband is not found on his
person, the Commonwealth must establish that the defendant had
constructive possession of the controlled substance in order to support the
conviction. Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012),
appeal denied, 63 A.3d 1243 (Pa. 2013).
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. Constructive
possession is an inference arising from a set of facts that
possession of the contraband was more likely than not. We 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 be
established by the totality of the circumstances.
Brown, 48 A.3d at 430 (citation omitted).
Here, Appellant contends that the Commonwealth established
constructive possession through circumstantial evidence, showing that
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Trooper Brennan identified Appellant as the passenger of the minivan “very
close in time to the apparent throwing of heroin packages out of the [vehicle’s
passenger window].” Appellant’s Brief at 21. According to Appellant, this
circumstantial evidence, namely Trooper Brennan’s observation of Appellant
in the vehicle and the pedestrian eyewitness’s observation of the contraband
being tossed out of the vehicle’s passenger window during the police pursuit
of the minivan, was insufficient to demonstrate, beyond a reasonable doubt,
that Appellant constructively possessed the contraband. Id. Appellant
asserts that the evidence demonstrates that the driver of the vehicle and the
pedestrian were in possession of the contraband. Appellant further asserts
that although contraband was discovered between the driver’s seat and the
passenger’s seat of the vehicle, upon the vehicle’s search pursuant to a
warrant, there is insufficient evidence that the contraband was present in that
location when Appellant was seated in the front passenger seat, assuming
arguendo, that Appellant was the passenger. Id. at 32-33.
The trial court, in addressing Appellant’s issue, stated,
In framing this issue, [Appellant] totally discounts Trooper
Brennan's in-court identification of [Appellant] as the individual
seated in the front passenger seat of [the vehicle at the time of
the initial traffic stop]. [The encounter] took place in broad
daylight. Trooper Brennan observed [Appellant] for about 10 to
30 seconds face-to-face. During part of this time[,] they were
engaged in a physical struggle. . . .
Trooper Brennan's positive identification of [Appellant] provided
sufficient evidence for the jury to conclude beyond a reasonable
doubt that he committed the crimes. Once the jury determined
[Appellant] was involved, the record contains ample evidence for
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[the jury] to conclude he constructively possessed the controlled
substance.
Trial Court Opinion, 3/17/20, at 9.
The record demonstrates that Trooper Brennan observed two individuals
in the minivan prior to his initial stop of the vehicle. N.T., 7/31/19, at 39.
Trooper Brennan stated, “the driver was behind the driver's wheel, obviously,
and the passenger I observed, []-- I couldn't tell if [the passenger] was [in]
the rear third row passenger seats of the vehicle or the second interior row,
but he was directly in the middle of the vehicle on the passenger seat.” Id.
Upon approaching the minivan, Trooper Brennan observed Appellant sitting in
the front passenger seat of the minivan, and the driver was described as a
“black[,] non-Hispanic female[.]” Id. at 40-41, 42-43. The minivan
subsequently fled with Trooper Brennan in pursuit. Id. Trooper Brennan
indicated that he lost site of the minivan for a brief time during the pursuit.
Id. at 47. When the minivan was stopped, subsequent to the police pursuit
of the minivan, only the female driver remained in the minivan; Appellant was
no longer in the minivan. Id. at 53. A search of the minivan was conducted
pursuant to a search warrant and two bricks (50 bundles) of heroin were
recovered from the area between the driver’s seat and the passenger’s seat
of the minivan. Id. at 63. An additional brick (25 bundles) of heroin was
found behind the driver’s seat. Id. A pedestrian, who was later stopped by
the police as a possible suspect, observed an African-American male toss
packages of heroin out of the passenger side window of the minivan as the
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minivan drove past him during the police pursuit of the minivan. Id. at
168-172.
Based upon the totality of the circumstances, the jury could infer,
beyond a reasonable doubt, that Appellant constructively possessed the heroin
that was found in the minivan and on the street, after being tossed from the
passenger window of the minivan. Trooper Brennan unequivocally identified
Appellant, in-court, as the passenger of the minivan. Packages of heroin were
located between the front seats of the minivan, as well as behind the driver’s
seat, in close proximity to the front passenger seat of the minivan that
Appellant occupied when Trooper Brennan initially stopped the minivan. In
addition, an African-American male was observed tossing packages of heroin
out of the front passenger window of the minivan shortly before the police
stopped the minivan a second time. Although the pedestrian did not identify
Appellant as the male tossing the contraband out of the passenger window, a
jury could infer, beyond a reasonable doubt, that Appellant was the male
because Trooper Brennan observed only Appellant and a female driver in the
van during his initial stop and prior to the subsequent high-speed police
pursuit of the minivan. Therefore, in viewing all of the evidence and the
inferences drawn from that evidence in the light most favorable to the
Commonwealth, as the verdict winner, there was sufficient evidence for the
jury, as fact-finder, to find that Appellant had constructive possession of the
controlled substance. Thus, Appellant’s sufficiency claim is without merit.
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In his fifth issue, Appellant challenges the trial court’s jury instruction
on the consciousness of guilt, arguing that the jury instruction was given in
error because identification of Appellant, as the perpetrator of the crime, was
allegedly at issue. Appellant’s Brief at 35-36.
“In order to preserve a claim that a jury instruction was erroneously
given, the [a]ppellant must have objected to the charge at trial.”
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (citation
omitted), appeal denied, 117 A.3d 296 (Pa. 2015); see also Pa.R.A.P. 302(b)
(stating, “A general exception to the charge to the jury will not preserve an
issue for appeal. Specific exception shall be taken to the language or omission
complained of.”); Pa.R.Crim.P. 647(C) (stating, “No portions of the charge nor
omissions from the charge may be assigned as error, unless specific objections
are made thereto before the jury retires to deliberate. All such objections shall
be made beyond the hearing of the jury.”). A party’s objection at the charging
conference to a proposed jury instruction is not sufficient to preserve a claim
challenging that instruction on appeal. Commonwealth v. Cosby, 224 A.3d
372, 421 (Pa. Super. 2019), citing Parker, 104 A.3d at 29. The party must
object immediately after the jury charge is given and before the jury retires
for deliberation. Cosby, 244 A.3d at 421-422; see also Commonwealth v.
Rouse, 2020 WL 2781559, at *4 (Pa. Super Filed May 28, 2020) (stating,
“the failure to object or take exception to a jury instruction before the jury
retires to deliberate results in waiver of review of the instruction). This
requirement is “frequently overlooked[.]” Pa.R.A.P. 302 at Official Note.
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Here, a review of the record demonstrates that Appellant objected to
the trial court providing the consciousness of guilt jury instruction during the
charging conference. N.T., 8/1/19, at 4. Appellant, however, failed to lodge
a specific objection to this jury instruction after the trial court completed the
charge and before the jury retired for deliberation. Id. at 62-64. Therefore,
Appellant waived this issue because he did not preserve the issue with the
trial court.
Appellant’s sixth issue challenges the trial court’s denial of his motion
requesting that the trial court charge the jury with standard jury instruction
4.07(B), relating to identification testimony, because identification of
Appellant as the perpetrator of the crime was allegedly in doubt. Appellant’s
Brief at 37-40.
“Our standard of review when considering the denial of jury instructions
is one of deference – [this Court] will reverse a [trial] court's decision only
when it abused its discretion or committed an error of law.” Commonwealth
v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018) (citation and original
brackets omitted), appeal denied, 217 A.3d 180 (Pa. 2019). Pennsylvania
Suggested Standard Criminal Jury Instruction 4.07(B), derived from our
Supreme Court’s decision in Commonwealth v. Kloiber, 106 A.2d 820 (Pa.
1954), in essence, conveys “to the jury that it must receive with caution the
testimony of any witness who [] failed to identify the defendant or whose
identification is of doubtful accuracy.” Commonwealth v. Washington, 927
A.2d 586, 604 (Pa. 2007). In Kloiber, our Supreme Court held,
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where the witness is not in a position to clearly observe the
assailant, or he is not positive as to identity, or his positive
statements as to identity are weakened by qualification or by
failure to identify [the] defendant on one or more prior occasions,
the accuracy of the identification is so doubtful that the [trial
court] should warn the jury that the testimony as to identity must
be received with caution.
Kloiber, 106 A.2d at 826-827. “A defendant is entitled to a Kloiber
instruction where a witness: (1) was not in a position to clearly observe the
defendant, or is not positive as to identity; (2) equivocated on the
identification; or (3) failed to identify the defendant on prior occasions.”
Commonwealth v. Johnson, 139 A.3d 1257, 1281 (Pa. 2016) (citation
omitted). The Kloiber Court held, however, that
[w]here the opportunity for positive identification is good and the
witness is positive in his identification and his identification is not
weakened by prior failure to identify, but remains, even after
cross-examination, positive and unqualified, the testimony as to
identification need not be received with caution [and the] positive
testimony as to identity may be treated as the statement of a fact.
Kloiber, 106 A.2d at 826 (citations and quotation marks omitted).
Here, Appellant argues that the Kloiber instruction was warranted
because the details and accuracy of Trooper Brennan’s description of the
minivan passenger were allegedly “poor.” Appellant’s Brief at 38. Appellant
contends Trooper Brennan’s identification of Appellant as the perpetrator was
based upon his observation of the minivan passenger for a limited period of
time, in which Trooper Brennan was focused not on the passenger’s face but,
rather, on the passenger’s left hand. Id.
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The trial court, in denying Appellant’s request for a Kloiber instruction,
stated that Trooper Brennan was positive in his identification of Appellant as
the perpetrator, and the patrol unit video of the initial traffic stop showed
Trooper Brennan approaching the minivan, after it stopped, and looking in the
vehicle’s window at the passengers. N.T., 8/1/19, at 7. The trial court
explained,
The crime took place in broad daylight. Trooper Brennan observed
[Appellant] for about 10 to 30 seconds face-to-face. During part
of this time[,] they were engaged in a physical struggle. After
receiving and viewing [Appellant’s] photograph, Trooper Brennan
immediately expressed a high level of certainty [Appellant] was
the actor. The photographic identification was made within ten
days of the incident. There were no circumstances warranting
special caution concerning the accuracy of the identification.
Trial Court Opinion, 3/17/20, at 9-10.
Based upon our review of the record, we concur with the trial court that
the Kloiber instruction was not warranted. Trooper Brennan observed
Appellant, under well-lite circumstances, for between 10 and 30 seconds, at a
distance of one foot, and was able to unequivocally identify Appellant as the
perpetrator upon subsequent receipt of Appellant’s photograph. Confidence
in Trooper Brennan’s identification of Appellant as the minivan passenger was
inferentially shown through Trooper Brennan’s “immediate” rejection of a
pedestrian apprehended as the suspected passenger after Trooper Brennan
provided a general description of Appellant to other law enforcement officers.
Trooper Brennan stated with certainty, during his in-court identification of
Appellant as the perpetrator of the crime, that Appellant was the passenger
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he observed in the minivan. Therefore, we find no abuse of discretion, or
error of law, in the trial court’s denial of Appellant’s request for the Kloiber
instruction. Consequently, Appellant’s issue is without merit.
In his seventh issue, Appellant claims the trial court erred in determining
that he was not eligible for the Recidivism Risk Reduction Inventive (“RRRI”)
program, when the trial court sentenced Appellant. Appellant’s Brief at 41-43.
Appellant’s claim implicates the legality of his sentence and raises a question
of law for which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super.
2016) (stating, “[i]t is legal error to fail to impose a RRRI minimum on an
eligible offender” (citation omitted)), appeal denied, 159 A.3d 935 (Pa. 2016).
A defendant convicted of a criminal offense is eligible for the RRRI
program if he, or she, meets all of the following requirements:
(1) Does not demonstrate a history of present or past violent
behavior.
(2) Has not been subject to a sentence the calculation of which
includes an enhancement for the use of a deadly weapon as
defined under law or the sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing or the attorney for
the Commonwealth has not demonstrated that the defendant has
been found guilty of or was convicted of an offense involving a
deadly weapon or offense under 18 Pa.C.S.[A.] Ch. 61 (relating to
firearms and other dangerous articles) or the equivalent offense
under the laws of the United States or one of its territories or
possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation or criminal
attempt, criminal solicitation or criminal conspiracy to commit any
of these offenses.
(3) Has not been found guilty of or previously convicted of or
adjudicated delinquent for or criminal attempt, criminal
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solicitation or criminal conspiracy to commit murder, a crime of
violence as defined in 42 Pa.C.S.[A.] § 9714(g) (relating to
sentences for second and subsequent offenses) or a personal
injury crime as defined under section 103 of the act of November
24, 1998 (P.L. 882, No. 111), known as the Crime Victims Act,
except for an offense under 18 Pa.C.S.[A.] § 2701 (relating to
simple assault) when the offense is a misdemeanor of the third
degree, or an equivalent offense under the laws of the United
States or one of its territories or possessions, another state, the
District of Columbia, the Commonwealth of Puerto Rico or a
foreign nation.
(4) Has not been found guilty or previously convicted or
adjudicated delinquent for violating any of the following provisions
or an equivalent offense under the laws of the United States or
one of its territories or possessions, another state, the District of
Columbia, the Commonwealth of Puerto Rico or a foreign nation
or criminal attempt, criminal solicitation or criminal conspiracy to
commit any of these offenses:
18 Pa.C.S.[A.] § 4302(a) (relating to incest).
18 Pa.C.S.[A.] § 5901 (relating to open lewdness).
18 Pa.C.S.[A.] Ch. 76 Subch. C (relating to Internet child
pornography).
Received a criminal sentence pursuant to 42 Pa.C.S.[A.]
§ 9712.1 (relating to sentences for certain drug offenses
committed with firearms).
Any offense listed under 42 Pa.C.S.[A.] Ch. 97 Subch. H
(relating to registration of sexual offenders) or I (relating to
continued registration of sexual offenders).
Drug trafficking as defined in [61 Pa.C.S.A. §] 4103
(relating to definitions).
(5) Is not awaiting trial or sentencing for additional criminal
charges, if a conviction or sentence on the additional charges
would cause the defendant to become ineligible under this
definition.
61 Pa.C.S.A. § 4503 (definition of “Eligible Person”) (footnote omitted). A
defendant demonstrates a history of present or past violent behavior when
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there is an established record or pattern of violent behavior. Commonwealth
v. Cullen-Doyle, 164 A.3d 1239, 1243 (Pa. 2017) (citation and quotation
marks omitted). Evidence that the defendant was previously convicted of
resisting arrest is sufficient to establish a history of present or past violent
behavior. Finnecy, 135 A.3d at 1034-1035.
Here, Appellant argues that because the Commonwealth “offered no
date, facts[,] or docket number on the solitary Pennsylvania case” of resisting
arrest (domestic related) in 2017 or on the multiple cases of resisting arrest
in the State of Delaware, the Commonwealth did not establish a history of
present or past violent behavior. Appellant’s Brief at 42. Appellant further
contends the trial court erred in failing to determine whether he was eligible
for the RRRI program on the record at the sentencing hearing. Id. at 42-43.
The Commonwealth, in calculating Appellant’s prior record score of four
on the Pennsylvania Commission on Sentencing’s guideline sentence form,
represented that Appellant had a prior weapons offense for receiving stolen
property of a firearm and seven misdemeanor offenses in the State of
Delaware.8 N.T., 11/7/19, at 11. The following dialogue occurred at the
sentencing hearing:
____________________________________________
8 11 Del.C §§ 1450 and 1257(b), respectively. Under Delaware law, a person
is guilty of receiving stolen property of a firearm “if the person intentionally
receives, retains or disposes of a firearm of another person with intent to
deprive the owner of it or to appropriate it, knowing that it has been acquired
under circumstances amounting to theft, or believing that it has been so
acquired.” 11 Del.C. § 1450.
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[Commonwealth:] [Appellant has a history of violence, resisting
arrest, domestic assaults as a juvenile. He
has a history of violence[.]
...
[Appellant:] Your Honor, and that conviction was[,] I was
a juvenile and I got charged as an adult. I
was a juvenile on a violent offense. I was
charged as an adult. I really [do not] have
[any] adult record. This will be my first
assault offense, prior to resisting arrest and
violence. The violence was part of my
juvenile record.
[Commonwealth:] Your Honor, we have a disposition [in] 2017
for resisting arrest, domestic related. There
are multiple resisting arrests in his record
that are adult convictions [] in the State of
Delaware. . . .
The Court: All right; [he has] been arrested almost
every year, [2018,] which is this case,
[2017, 2016, 2015, 2013, 2012, 2010, 2009,
2008, and 2007.] Is that your record?
[Appellant:] That’s [a] juvenile record.
The Court: So were you a juvenile in 2016?
...
[Appellant:] I was like 19, 20 – like 19.
The Court: All right; so that’s not a juvenile record.
...
[Appellant:] No, not at all.
Id. at 18-20.
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Here, the record demonstrates that Appellant was convicted of receiving
a stolen firearm, which is a deadly weapon.9 Appellant also has a history of
resisting arrest, including a disposition in 2017 when Appellant was an adult.
Therefore, Appellant was ineligible for the RRRI program because he was
convicted of a crime involving a deadly weapon and of resisting arrest on
multiple occasions, which demonstrates a pattern of violent behavior. See 61
Pa.C.S.A. § 4503(1) and (2); see also Finnecy, 135 A.3d at 1034-1035. In
determining Appellant’s ineligibility for the RRRI program, the record
demonstrates that the trial court considered Appellant’s established pattern of
violent behavior on the record at the time of sentencing. See N.T., 11/7/19,
at 18-20. Consequently, Appellant’s issue is without merit.
In his final issue, Appellant challenges the sentence imposed by the trial
court on the grounds the trial court failed to consider “confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of [Appellant].” Appellant’s Brief at 45. Appellant claims
his sentence was, therefore, illegal. Id.
Appellant’s claim does not implicate the legality of his sentence but,
rather, challenges the discretionary aspects of his sentence. See
____________________________________________
9A deadly weapon is defined as, inter alia, “[a]ny firearm, whether loaded or
unloaded[.]” 18 Pa.C.S.A. § 2301.
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Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013) (en
banc) (stating, “[a] sentencing court's failure to follow the pertinent aspects
of [42 Pa.C.S.A.] § 9721(b) do[es] not result in an illegal sentence, but
pertain[s] to discretionary sentencing matters” (citation omitted)).10
It is well-settled that “the right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d 162
(Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test[.]
We conduct a four-part analysis to determine: (1) whether
appellant [] filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a [post-sentence] motion to reconsider
and modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170.
____________________________________________
10 Section 9721(b) of the Pennsylvania Sentencing Code states, that when
imposing a sentence, the trial court “shall follow the general principle that the
sentence imposed should call for total confinement that is consistent with
[S]ection 9725 (relating to total confinement) and the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b).
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Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted).
Here, the record demonstrates that Appellant filed a timely notice of
appeal. Appellant, however, failed to preserve his challenge to the
discretionary aspect of his sentence by raising the issue at sentencing or by
filing a post-sentence motion to reconsider and modify the sentence.
Therefore, Appellant has waived his issue.11 See Cartrette, 83 A.3d at 1042
(holding, that a challenge to the discretionary aspect of sentence is waived if
not raised in a post-sentence motion or by presenting the claim to the trial
court during the sentencing proceeding).
Amended judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/20
____________________________________________
11 Appellant failed to include a Rule 2119(f) statement in his brief. The
Commonwealth, however, did not object to Appellant’s failure to comply with
Rule 2119(f). Because Appellant failed to preserve his challenge with the trial
court and, therefore, waived this issue, we do not examine whether the failure
to include the Rule 2119(f) statement is a fatal defect. See Commonwealth
v. Gambal, 561 A.2d 710 (Pa. 1988) (holding, if the Commonwealth does not
file an objection, this Court may either enforce the procedural requirement,
finding waiver of the issue for failure to file a Rule 2119(f) statement, or ignore
the procedural defect, if the failure to file a Rule 2119(f) statement does not
significantly hamper the Court’s ability to determine whether a substantial
question exists).
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