Com. v. Johnson, A. ( 2023 )

J-A02009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON ERNEST JOHNSON :
:
Appellant : No. 67 WDA 2022
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000168-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON ERNEST JOHNSON :
:
Appellant : No. 68 WDA 2022
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000169-2019
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: JUNE 6, 2023
Aaron Ernest Johnson appeals from his aggregate judgment of sentence
of thirty-eight years and four months to seventy-six years and eight months
of incarceration imposed after a jury convicted him of, inter alia, drug delivery
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* Retired Senior Judge assigned to the Superior Court.
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resulting in death, corrupt organizations, and conspiracy—delivery of a
controlled substance. We affirm.
We glean the following factual history of this case from the certified
record.1 William Stout (“Decedent”) suffered from a heroin addiction. Sadly,
but all too unsurprisingly, his addiction led to criminal activity and
incarceration followed by struggles with recovery. In 2018, Decedent was on
state parole. After Tanya Brooks, his paramour and one-time fiancé, gave
him an ultimatum about staying clean, Decedent moved into an apartment
above the stand-alone garage at the home of Ms. Brooks’s parents. As
Ms. Brooks lived with her parents, this proximity was designed to allow the
couple to “reestablish trust and boundaries.” N.T. Trial, 7/29/20, at 61.
Decedent’s normal routine was to go to his job at Commodore Homes, return
to the apartment, eat, shower, and then spend the evening on the couch
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1 We note with displeasure that the factual recitation in Appellant’s brief is
blatantly biased and rife with argument in contravention of Pa.R.A.P. 2117(b)
(“The statement of the case shall not contain any argument. It is the
responsibility of appellant to present in the statement of the case a balanced
presentation of the history of the proceedings and the respective contentions
of the parties.”). Counsel’s duty to zealously represent his client does not
supersede his obligation to abide by procedural rules. While we decline to
penalize Appellant for counsel’s failure to comply with Rule 2117, we admonish
counsel that overzealous advocacy risks prejudicing a client rather than
advancing his interests. See, e.g., Commonwealth v. Rodgers, 605 A.2d
1228, 1233 (Pa.Super. 1992) (declining to punish the appellant for counsel’s
“blatantly partisan” statement of the case, but observing that, “[w]hen the
circumstances warrant it, we will not hesitate either to quash an appeal or to
remand for preparation of a new brief”).
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watching television or to come into the house to see what the family was
doing. Id. at 69-70.
On the morning of November 19, 2018, Decedent called his co-worker,
Spencer Rudolph, at 6:39 a.m. before clocking in at work at 6:53 a.m. Id. at
179. Rudolph, who had clocked in at 6:46, met Decedent in the workplace
bathroom before their 7:00 shifts and sold Decedent five stamp bags of
heroin. Id. at 184. Decedent clocked out of work at 4:37 p.m. and parked
his truck outside his apartment. Id. at 68-71, 178. At approximately 5:15,
Decedent came into the house to speak with Ms. Brooks about Thanksgiving,
exhibiting no signs of being under the influence of drugs. Id. at 70, 84. Since
she was rushing to get her son to basketball practice, she told Decedent that
she would stop by the apartment later to talk about it. Id. at 66. As she was
leaving, Ms. Brooks saw Decedent’s parked truck outside and could see him
sitting on the couch through the open shade of his apartment’s window.
When Ms. Brooks did not feel well that evening, she texted Decedent at
9:32 p.m. to let him know that she was not going to come visit him after all.
Decedent did not respond to that message or two others she sent between
then and 11:27 p.m. Ms. Brooks looked out her window several times that
night and saw that the light was still on, but did not see Decedent in the
window, so she supposed he fell asleep on the couch. Id. at 72-75. Neither
Ms. Brooks nor her father saw anyone come or go from Decedent’s apartment
that night. Id. at 75, 97-98.
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The next morning, Decedent’s truck was still parked in his spot when he
should have been at work. Ms. Brooks went upstairs to the apartment where
the shade was still open, the television was on, and water was running in the
bathtub.2 Upon entering the bathroom, she discovered Decedent naked in the
bathtub. He was dead. Id. at 78. The police were summoned and found no
obvious cause of death and no drugs in the apartment aside from a
prescription for Gabapentin. Id. at 133. Nor were any text or voicemail
messages concerning drugs found on his phone. Id. at 165. Accordingly, the
police did not begin a criminal investigation until a toxicology report revealed
on January 28, 2019, that Decedent had died from a fentanyl overdose.3 Id.
at 107-09, 162-63.
Clarion County Police Chief William Peck, who was in charge of the local
drug task force, reexamined Decedent’s contacts in his cell phone. The name
“Spencer,” which the phone indicated Decedent had called the day before he
was found dead, overlapped with a tip Chief Peck had received a few days
prior. Chief Peck had noted Rudolph’s name and number on a scrap of paper
as an individual reportedly selling heroin in Shippenville. Id. at 166-67. Chief
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2 Water bills for the apartment during Decedent’s residence revealed typical
usage of around 1,000 to 1,200 gallons per month. During the billing period
that had just begun on November 14, 2018, the usage was 3,000 gallons. The
next bill was zero. See N.T. Trial, 7/29/20, at 264-65.
3 Decedent had not filled any prescriptions for fentanyl in 2018. See N.T.
Trial, 7/30/20, at 71.
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Peck thus focused the investigation on Rudolph, engaging in surveillance,
conducting a controlled buy, and ultimately executing a search warrant at
Rudolph’s residence on February 13, 2019. Id. at 169.
At a subsequent interview, Rudolph, himself addicted to opiates,
ultimately admitted to selling the heroin to Decedent on Monday,
November 19, 2018. Id. at 184; N.T. Trial, 7/30/20, at 89. Rudolph indicated
that he had obtained the plain, unmarked stamp bags that he sold to Decedent
from Joseph Hoffman in Brockway, Jefferson County, two days prior, on
Saturday, November 17, 2018. See N.T. Trial, 7/29/20, at 185. Video
footage later obtained from the Sheetz in Brockway confirmed this exchange.
Id. at 186-92. Rudolph stated, and Decedent’s phone log corroborated, that
he had called Decedent on his way back to Clarion County with the drugs. Id.
at 193-94.
Rudolph further explained that, when Hoffman himself had been
arrested and jailed, Hoffman’s supplier, William Fourness of Elk County,
contacted Rudolph to suggest that Rudolph begin obtaining the drugs directly
from Fourness. Id. at 175, 205. Rudolph, representing that he could obtain
more heroin from Fourness, agreed to assist the police in setting up a “buy-
bust” using Rudolph’s phone, which resulted in the procurement of heroin
containing fentanyl. Id. at 199-209. Chief Peck learned that the Pennsylvania
State Police had also obtained fentanyl-laced heroin from Fourness in a
controlled buy that occurred on November 20, 2018. Id. at 209.
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When interviewed by Chief Peck, Fourness identified Appellant as his
heroin supplier. Id. at 210-13. Fourness became connected with Appellant
in the late summer of 2018. While Fourness briefly used a different dealer in
October, by November Appellant was his exclusive source of heroin. See N.T.
Trial, 7/30/20, at 113, 141-43. Fourness indicated that the exclusivity was
reciprocal: “Me and my wife and [Appellant] all came to an agreement that
as long as I maintain my business as I did and continue to bring [Appellant]
money as I did, that he would not give [to] anybody besides us.” Id. at 155.
The criminal enterprise was as follows. While Fourness sometimes
personally met with Appellant to obtain the drugs, in most instances he
arranged for others to retrieve the contraband from Appellant in Monroeville,
outside Pittsburgh in Allegheny County. Id. at 114. Fourness utilized the
services of drug users who were willing to work for drugs and a small amount
of cash. He would also supply them drugs on consignment to sell to third
parties and return a percentage of the proceeds. Id. at 118-20.
Fourness did not want his dealers to know how to contact Appellant
directly, as they might decide to cut out Fourness as the middleman. Id. at
118. Instead, only he would call, text, or Facetime Appellant to arrange the
place for the delivery. Once Fourness’s runners were at the set location,
Fourness would advise Appellant they were there and what they were driving.
Id. at 116. Sometimes the runners would pay Appellant for the drugs, other
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times Fourness would wire the money to Appellant through Western Union. 4
Id. at 125. Hoffman was Fourness’s initial choice to meet with Appellant in
Monroeville, doing so on about a dozen occasions before Hoffman was
arrested. After Hoffman was arrested, a mutual friend suggested Rudolph as
a replacement, who made the trip approximately six times. Id. at 121-22.
When Rudolph was unavailable, he utilized Ryan Gleixner “to help me continue
my day-to-day operations.” Id. at 124.
Chief Peck also went to the Elk County Jail to interview Hoffman. See
N.T. Trial, 7/29/20, at 216. Hoffman confirmed Fourness’s description of the
workings of the operation. Namely, the arrangement was that Fourness would
send him to meet Appellant, whom he knew only as “Smooth,” in Monroeville.
Hoffman would then drive the drugs back to Fourness in Elk County. See id.
at 216-17; N.T. Trial, 7/30/20, at 168-71.
Hoffman had been arrested on November 24, 2018, when he was found
unconscious in his car while it was parked in a public parking lot, still running.
See N.T. Trial, 7/30/20, at 168-71. Hoffman’s car contained packets of
fentanyl that Hoffman had obtained for Fourness from Appellant at a Sheetz
in Monroeville on November 21, 2018. Id. at 174-76. Police were able to
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4 The police subpoenaed Western Union and obtained a record of a $4,000
transfer from Fourness at a Rite Aid store in Elk County to Appellant at a
Giant Eagle store in Allegheny County in January 2019. The documentation
supplied Appellant’s full name, date of birth, and driver’s license number. See
N.T. Trial, 7/29/20, at 209-15; Commonwealth’s Exhibit 27.
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retrieve footage from security cameras to confirm this meeting. Id. at 170-
71. Hoffman further indicated that, on November 17, 2018, he had procured
heroin from Appellant and sold it to Rudolph.5 Id. at 182.
Gleixner also confirmed his role in the operation, i.e., getting money
from Fourness to buy drugs from Appellant in Monroeville, usually at the
Sheetz, taking them back to Fourness, and being permitted to keep some for
his own use.6 Id. at 203-04. One time, Appellant met Gleixner at the Sheetz
but had him follow Appellant back to his house a few miles away to retrieve
the drugs from the basement. Id. at 206. Ultimately, Gleixner cooperated
with the police by directing Chief Peck and a state trooper to Appellant’s house
at 331 Noel Drive. Id. at 210; N.T. Trial. 7/29/20, at 230.
Chief Peck worked with the Monroeville police to conduct surveillance of
that residence in the beginning of March 2019. Appellant utilized two vehicles
to come and go from the residence, a Jeep that was registered to Appellant,
depicted in the Sheetz video, and was described by the runners, and also a
black BMW. See N.T. Trial, 7/31/20, at 22. Appellant was observed coming
and going to 331 Noel Drive but spent nights at a halfway house. See N.T.
Trial. 7/29/20, at 234-37. An examination of the residence’s curbside trash
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5 The video footage from that date was not available.
6 Gleixner indicated that he suffered from severe neuropathy and turned to
illegal narcotics when his providers cut back on his pain medication. See N.T.
Trial, 7/30/20, at 209.
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revealed evidence of drug packaging, and a stop of a third party’s vehicle that
had just left the residence resulted in the seizure of a stamp bag of suspected
contraband. See N.T. Trial, 7/31/20, at 6, 12. Armed with this information,
Chief Peck and a state trooper decided to apply for a search warrant for 331
Noel Drive. Chief Peck issued instructions that if Appellant left the residence
in the meantime, he was to be detained. See N.T. Trial, 7/29/20, at 239.
Timothy Smith was another third party who purchased stamp bags for
his personal use from Appellant in Monroeville, including on March 12, 2019.
See N.T. Trial, 7/30/20, at 224-28. On that date, Appellant asked Mr. Smith
if he could give him a ride, and Mr. Smith obliged. Id. at 227-28. Mr. Smith
pulled up in front of 331 Noel Drive in his Toyota, Appellant got into the front
passenger seat, and before they travelled very far, multiple police cars
stopped them and arrested Appellant. Id. The police recovered a bag of
heroin from the floor of Mr. Smith’s vehicle between Appellant’s feet. See
N.T. Preliminary Hearing, 4/9/19, at 43-44, 57.
Chief Peck then participated in executing the search warrant of the
residence. Police found indicia that Appellant resided at 331 Noel Drive,
including mail addressed to him there and a photograph of him and his
girlfriend, Wakita Owens. See N.T. Trial, 7/29/20, at 245. Ms. Owens showed
Chief Peck a link to an article about Fourness’s arrest in the buy-bust that
Appellant had sent to her through Facebook Messenger with the comment:
“This is my people that got set up[.]” Id. at 247; Commonwealth’s Exhibit
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50. Among the items seized were a money counter, cutting agents, packaging
materials for stamp bags, and drugs, including fentanyl, in the basement, an
office, and a bedroom. Id. at 241-44; N.T. Trial, 7/31/20, at 32-33. All told,
there was enough drugs for 900 stamp bags. See N.T. Trial, 7/31/20, at 34.
Both of the above-captioned cases were then filed in Clarion County. At
CP-16-CR-0000168-2019 (“Case 168”), Appellant was charged with, inter alia,
drug delivery resulting in death, corrupt organizations, conspiracy—corrupt
organizations, criminal use of communications facility, and multiple counts of
delivery of a controlled substance occurring in November 2018. At CP-16-CR-
0000169-2019 (“Case 169”), Appellant was charged with multiple counts of
possession with intent to deliver (“PWID”), possession of drug paraphernalia,
driving with a suspended license, and conspiracy—PWID with Ms. Owens as
the alleged coconspirator, in connection with the events of March 2019.
Appellant was initially represented by the Clarion County Public
Defender’s office, but counsel withdrew due to a conflict of interest and
Michael Marshall, Esquire, was appointed in his stead. On June 21, 2019,
Attorney Marshall filed a pretrial motion in Case 169, seeking: (1) to dismiss
the charges for lack of subject matter jurisdiction because none of the March
2019 acts that formed the basis for the charges occurred in Clarion County;
and (2) to suppress all of the evidence obtained from the warrantless stop and
search of Smith’s Toyota, as well as from the execution of the warrant at 331
Noel Drive. See Pretrial Motion, 6/21/19, at ¶¶ 6-9, 12-14. By order of
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June 25, 2019, the trial court scheduled a hearing on the omnibus pretrial
motion to take place on Monday, August 12, 2019. The date of the hearing
was confirmed at a July 10, 2019 conference. See Criminal Conference
Report, 7/12/19.
On August 5, 2019, private counsel Eric A. Jobe, Esquire, filed a praecipe
to enter his appearance on Appellant’s behalf. In the late afternoon of Friday,
August 9, 2019, Attorney Jobe filed a motion to continue Monday’s pretrial
motion hearing, indicating that he had not had time to draft a suppression
motion and would not be able to attend the scheduled hearing because he was
in the midst of a trial in federal court. See Motion to Continue, 8/9/19, at 1.
The trial court promptly entered an order denying the motion and indicating
that the hearing would proceed as scheduled with Attorney Marshall, who had
not withdrawn as counsel. See Order, 8/9/19.
At the outset of the hearing, the court discussed the issues raised in the
motion and entertained argument from Attorney Marshall and the
Commonwealth on the jurisdiction issue. See N.T. Pretrial Motion, 8/12/19,
3-15. Appellant then addressed the court directly to complain that there were
additional issues he wished to raise concerning police misconduct that were
not included in the omnibus pretrial motion.7 Id. at 15-16. The trial court
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7 Although at the pretrial motion hearing and a subsequent hearing Appellant
indicated that he had “tons” of other issues that he wanted to pursue, the only
additional one he identified was that Chief Peck lied when he stated that he
had seen drug sales. See N.T. Rule 600 Hearing, 11/4/19, at 12-13.
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observed that the hearing had been scheduled since June, there were
deadlines for motions, and Appellant’s private counsel could not “come in at
the last minute and say that I need a continuance.” Id. at 16. Appellant
indicated that he merely wanted “to make a record, so this stuff will be heard
someday.” Id. The court responded, “Maybe it will. Maybe it won’t.” Id. It
gave Appellant the option of proceeding that day with the issues raised in
Attorney Marshall’s motion or dismissing the motion without guaranteeing that
Attorney Jobe would be permitted to file another one. Id. at 16-17. The
court stated that it was “not forcing [Appellant] to go forward with a hearing
today,” but needed to know whether they would proceed to take evidence
concerning the legality of the vehicle stop. Id. at 17. When Appellant, after
consulting with Attorney Marshall, refused to decide either way, Attorney
Marshall opted to proceed with the motion, not seeing “any benefit to him
having that dismissed just because of the circumstances.” Id. at 18.
Thereafter, Chief Peck testified that he arrested Appellant without a
warrant pursuant to Pa.R.Crim.P. 502(2)(b) based upon probable cause that
Appellant committed the felonies alleged in Case 168 related to Decedent’s
death, probable cause that he had developed in February 2019 before coming
to surveil Appellant in Monroeville.8 Id. at 24-27. Chief Peck acknowledged
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8 That provision of Rule 502 states as follows: “Criminal proceedings in court
cases shall be instituted by: . . . an arrest without a warrant: . . . upon
probable cause when the offense is a felony or murder[.]” Pa.R.Crim.P.
502(2)(b).
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that he had no information that the charges in Case 169 were connected to
Clarion County. Id. at 33-34. The Commonwealth offered into evidence the
affidavit of probable cause supporting the search warrant for 331 Noel Drive
and the transcript of the preliminary hearing, both of which were admitted
with no objection. Id. at 5, 10 (Commonwealth’s Exhibits 1 and 2). At the
conclusion of the hearing, the trial court entered an order allowing
Attorney Marshall to withdraw.
The trial court denied Appellant’s pretrial motion by opinion and order
of August 28, 2019. The cases proceeded with Attorney Jobe representing
Appellant, pursuing multiple unsuccessful motions to dismiss pursuant to
Pa.R.Crim.P. 600 that Appellant initially filed pro se. The trial court granted
the Commonwealth’s request to join for trial Cases 168 and 169 with those of
co-defendant Rudolph, and a trial ultimately began at the end of July 2020.
At trial, the Commonwealth presented the evidence summarized above,
largely through the testimony of Chief Peck, Fourness, Hoffman, Gleixner, and
Ms. Brooks. Neither Rudoph nor Appellant opted to testify. At the conclusion
of the four-day trial, the jury found Appellant guilty of the following offenses:
drug delivery resulting in death; corrupt organizations; conspiracy-corrupt
organizations; criminal use of a communication facility; seven counts of
delivery of a controlled substance, one each for Fourness, Hoffman, Rudolph,
and Gleixner, and three in March 2019; three counts of PWID related to the
traffic stop and search of 331 Noel Drive; three counts of possession of a
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controlled substance or paraphernalia in March 2019; and three counts of
conspiracy to deliver a controlled substance, each involving Fourness and a
different runner.9 On August 26, 2020, Appellant was sentenced to the
aggregate term indicated above.10
Attorney Jobe filed no post-sentence motion but did file a timely notice
of appeal. However, that appeal was dismissed after Attorney Jobe failed to
obtain the necessary transcripts or file a docketing statement. Appellant filed
pro se letters that the court deemed to be a timely motion for relief pursuant
to the Post Conviction Relief Act (“PCRA”). Upon determining that Appellant
was indigent, it granted him in forma pauperis status and appointed PCRA
counsel. See Order, 2/3/21. Counsel obtained the transcripts and filed an
amended PCRA petition which resulted in the PCRA court’s December 7, 2021
order granting Appellant the right to file a direct appeal nunc pro tunc.
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9 At various points, the Commonwealth nolle prossed the charges of
involuntary manslaughter, conspiracy with Ms. Owens, and driving with a
suspended license.
10 Rudolph was also convicted of many of the same offenses as Appellant,
including drug delivery resulting in death, corrupt organizations, and
conspiracy, and sentenced to an aggregate 169 to 392 months of
imprisonment. However, this Court vacated Rudolph’s judgment of sentence
on September 13, 2022, upon determining that the trial court erred in denying
Rudolph’s suppression motion based upon the Commonwealth’s failure to
disprove Rudolph’s claim that the warrant to search his residence was
executed in violation of the knock-and-announce rule. See Commonwealth
v. Rudolph, 285 A.3d 926 (Pa.Super. 2022) (non-precedential decision).
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Appellant filed a timely notice of appeal nunc pro tunc and both he and
the trial court complied with Pa.R.A.P. 1925.11 Appellant presents the
following questions, which we have re-ordered for ease of discussion:
1. Was the evidence insufficient to support his conviction for
drug delivery resulting in death because the prosecution
failed to establish the required element that [Appellant]
distributed the controlled substance that resulted in death?
2. Was the evidence insufficient to support his convictions for
corrupt organizations and a related conspiracy charge
because the prosecution failed to establish the required
element that [Appellant] was involved in an “enterprise”?
3. Did the trial court err when it failed to dismiss the charges
at trial court docket number 169 because Clarion County
was not the proper venue for the trial?
4. Did the trial court err and violate [Appellant]’s Sixth
Amendment right to counsel of his own choosing when it
forced [Appellant] to proceed at the omnibus hearing with
court-appointed counsel after [Appellant] privately retained
separate counsel?
5. Did the trial court err when it failed to grant suppression of
the evidence stemming from the warrantless car search
because no exigency existed, and, as such, the search
violated [Appellant]’s state constitutional rights?
Appellant’s brief at 3-4 (cleaned up).
We begin with Appellant’s two challenges to the sufficiency of the
evidence, “as success on that basis will result in discharge instead of retrial.”
Commonwealth v. Jordan, 212 A.3d 91, 94 (Pa.Super. 2019). Our standard
of review for these claims is as follows:
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11 Appellant continues to be represented by PCRA counsel in this appeal.
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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 a 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 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. Haahs, 289 A.3d 100, 104 n.2 (Pa.Super. 2022) (cleaned
up, emphases added).
Appellant first claims that the evidence was insufficient to support his
conviction for drug delivery resulting in death. The statute at issue defines
the offense as follows:
A person commits a felony of the first degree if the person
intentionally administers, dispenses, delivers, gives, prescribes,
sells or distributes any controlled substance or counterfeit
controlled substance in violation of [§] (a)(14) or (30) of . . . The
Controlled Substance, Drug, Device and Cosmetic Act,[12] and
another person dies as a result of using the substance.
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12 Section (a)(14) of the Act regulates the dispensation of drugs by medical
providers. See 35 P.S. § 780-113(a)(14). Section (a)(30) prohibits, with
exceptions not implicated here, “the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance by a person not
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18 Pa.C.S. § 2506(a). Hence, the Commonwealth satisfied its evidentiary
burden if it proved beyond a reasonable doubt that (1) Appellant delivered,
sold, or distributed a controlled substance to a person; (2) the delivery, sale,
or distribution to a person was intentional; and (3) that the delivery, sale, or
distribution violated the relevant provisions of the Controlled Substance Act;
and (4) that another person died as a result. See Commonwealth v. Peck,
242 A.3d 1274, 1280–81 (Pa. 2020).
The statute does not require that the delivery, sale, et cetera of the drug
occurred with the intention to cause a person to die, or that the person the
defendant delivered the drugs to be the same person whose death resulted.
See Commonwealth v. Carr, 227 A.3d 11, 16 (Pa.Super. 2020) (indicating
that the statute does not require that the defendant intended to cause the
death of another); Commonwealth v. Storey, 167 A.3d 750, 757 (Pa.Super.
2017) (“Section 2506(a)] does not require the death of the person to whom
the defendant originally sold the illegal substance.”). Rather, it is a question
of “but for” causation, with the caveat that the result must not have been “so
extraordinarily remote or attenuated that it would be unfair to hold the
defendant criminally responsible.” Commonwealth v. Kakhankham, 132
A.3d 986, 993 (Pa.Super. 2015) (cleaned up).
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registered under this act, or a practitioner not registered or licensed by the
appropriate State board, or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.” 35 P.S. § 780-
113(a)(30).
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Appellant does not dispute that the Commonwealth sufficiently proved
that he intentionally delivered fentanyl to a person in violation of the Act.
Rather, Appellant maintains that the Commonwealth’s evidence did not
establish the fourth element, namely that Decedent died as a result of using
the fentanyl that Appellant supplied. Specifically, Appellant argues that there
was no evidence that he ever interacted with Decedent and, given the absence
of drug packaging or paraphernalia, there was no evidence that Decedent
ingested fentanyl from a stamp bag, let alone one that Appellant supplied to
Hoffman three days prior to the death. See Appellant’s brief at 49-50.
Further, Appellant contends that the Commonwealth failed to account for
Decedent’s actions during the time between leaving work on the afternoon of
November 19 and the discovery of his body on the morning of November 20,
such that it is pure speculation that Decedent did not acquire and use fentanyl
from another source. Id. at 51. Appellant asserts that the evidence was such
that Appellant’s guilt was just as likely as his innocence and, therefore, the
verdict cannot stand. Id. at 55.
We disagree. Here, the jury’s verdict was founded not upon mere
speculation, but upon logical inferences. “The difference between an inference
and a speculation is that an inference is a reasoned deduction from the
evidence, a speculation is a guess.” Commonwealth v. Konz, 402 A.2d 692,
700 (Pa.Super. 1979) (Spaeth, J. dissenting), rev’d, 450 A.2d 638 (Pa. 1982).
See also Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008)
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(“[R]easonable inferences are predicated on proven facts and circumstances,
not on suspicion or surmise.”). The jury heard that Rudolph specifically
indicated that the drugs he sold Decedent were a portion of the ones he bought
from Hoffman on November 17, 2018. See N.T. Trial, 7/29/20, at 185. Video
footage and Hoffman’s own testimony corroborated the November 17
exchange. Id. at 186-92; N.T. Trial, 7/30/20, at 182. Hoffman further
indicated that he had obtained the heroin/fentanyl in question from Appellant.
See N.T. Trial, 7/30/20, at 182. Hence, there was direct evidence that drugs
delivered by Appellant ended up in Decedent’s hands.
The fact that Appellant’s drugs sold by Rudolph to Decedent were the
cause of death is established by logical deductions from the Commonwealth’s
circumstantial evidence. First, Decedent purchased the drugs at work before
he began his shift. He then completed his shift, and arrived at the Brooks
residence half an hour or less after clocking out, exhibiting none of the known
signs of impairment. See N.T. Trial, 7/29/20, at 70, 84, 178. Second,
Decedent, on notice that his relationship with Ms. Brooks would end if he
continued to use drugs, and expecting her to visit him later that evening, had
the motive to remove any sign of drug packaging and to be sober by later that
night. Id. at 61, 66. Third, there was no indication of anyone coming or going
to Decedent’s apartment that afternoon, evening, or night. Id. at 758, 97-
98. Fourth, Decedent’s normal routine upon returning from work was to eat
and then shower before watching television. Id. at 69-70. Fifth, the state
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and location of Decedent’s body and the use of three months’ worth of water
in a six-day period both suggest that Decedent ingested a lethal dose of
fentanyl earlier rather than later on the evening of November 19. Id. at 117,
264. Finally, Hoffman, an experienced user, himself was incapacitated, the
day after Decedent was found dead, by stamp bags purchased from Appellant
that Hoffman believed to have a higher fentanyl content than usual. See N.T.
Trial, 7/30/20, at 168-71, 180.
From this, a jury could logically conclude beyond a reasonable doubt
that Appellant brought at least some of the stamp bags he purchased at work
back to his apartment, ingested them, and eliminated the packaging in some
manner, such as by flushing it down the toilet, to hide his drug usage from
Ms. Brooks. Decedent then intended to go about his normal routine of
showering before settling in on the couch, but was overtaken by the powerful
drug instead, with the bath water continuing to run all night. In this way, the
conclusion that Decedent died as a result of the heroin laced with a larger-
than-typical amount of fentanyl that Appellant supplied to Rudolph through
Hoffman was not a guess among equally plausible explanations. The verdict
was based upon reasonable inferences, not pure speculation. Consequently,
we conclude that the guilty verdict for drug delivery resulting in death was
supported by sufficient evidence.
Appellant also claims that the Commonwealth’s evidence was
insufficient to sustain his conviction for corrupt organizations. Appellant was
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convicted pursuant to the following provision of the corrupt organizations
statute: “It shall be unlawful for any person employed by or associated with
any enterprise to conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering activity.” 18
Pa.C.S. § 911(b)(3). The statute defines racketeering activity as, inter alia,
“[a]n offense indictable under . . . The Controlled Substance, Drug, Device
and Cosmetic Act (relating to the sale and dispensing of narcotic drugs)” or a
conspiracy to commit such offense. 18 Pa.C.S. § 911(h)(1)(ii)-(iii). A pattern
of such activity is “a course of conduct requiring two or more acts of
racketeering activity one of which occurred after the effective date of this
section.” 18 Pa.C.S. § 911(h)(4).
Appellant does not dispute the Commonwealth’s proof that he engaged
in a pattern of racketeering activity. The only element with which Appellant
takes issue is that he was employed or associated with an enterprise.
“Enterprise” for purposes of § 911 means “any individual, partnership,
corporation, association or other legal entity, and any union or group of
individuals associated in fact although not a legal entity, engaged in commerce
and includes legitimate as well as illegitimate entities and governmental
entities.” 18 Pa.C.S. § 911(h)(3).
We conclude that the Commonwealth produced adequate evidence to
prove that Appellant was part of an enterprise. Fourness testified that he and
his wife reached an agreement with Appellant that they would acquire drugs
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only from him, and Appellant agreed to sell only to the Fournesses. See N.T.
Trial, 7/30/20, at 155. Exchanges between Appellant and Fourness or one of
his runners occurred dozens of times between late 2018 and early 2019. Id.
at 121-25. Fourness identified recognizable packaging for some of the drugs,
such as a “Kill Bill” stamp. Id. at 127. The individuals in the organization had
defined roles and took measures to ensure the continuing viability of the “day-
to-day operations,” such as utilizing replacement runners and street-level
dealers when others were unavailable and utilizing Facetime for last-minute
delivery arrangements to verify the identify of those involved. Id. at 116,
123.
This was no mere one-off conspiracy, but a continuing association in fact
that only ceased when too many members were taken down within a short
timeframe. Thus, Appellant’s corrupt organizations conviction is founded on
sufficient evidence. Accord Commonwealth v. Hill, 210 A.3d 1104, 1114
(Pa.Super. 2019) (indicating that there was no viable challenge to the
existence of an enterprise where “the evidence demonstrate[d] that [the
defendant] and . . . straw purchasers formed an association in fact to carry
out illegal purchases of firearms”). Appellant’s second sufficiency challenge
fails.
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We next consider Appellant’s claim that Clarion County was not a proper
venue for Case 169.13 Our Supreme Court has specified that appellate review
of a venue ruling examines “whether the trial court’s factual findings are
supported by the record and its conclusions of law are free of legal error.”
Commonwealth v. Gross, 101 A.3d 28, 33-34 (Pa. 2014). The trial court’s
task, when venue is challenged by a defendant, is to determine whether the
Commonwealth established the propriety of venue by a preponderance of the
evidence. Id.Venue for criminal cases “belongs in the place where the crime
occurred.” Id. at 33 (cleaned up). In other words, that it is a location “with
which the defendant may be criminally associated, either directly, jointly, or
vicariously.” Id. The Rules of Criminal Procedure speak to venue, in relevant
part, as follows:
(A) Venue. All criminal proceedings in summary and court cases
shall be brought before the issuing authority for the magisterial
district in which the offense is alleged to have occurred or before
an issuing authority on temporary assignment to serve such
magisterial district, subject, however, to the following exceptions:
....
(3) When charges arising from the same criminal
episode occur in more than one judicial district, the
criminal proceeding on all the charges may be brought
____________________________________________
13 Although Appellant’s pretrial motion referenced jurisdiction, the propriety
of venue in Clarion County, rather than that court’s jurisdiction, was
implicated. See, e.g., Commonwealth v. Bethea, 828 A.2d 1066, 1074
(Pa. 2003) (“[A]ll courts of common pleas have statewide subject matter
jurisdiction in cases arising under the Crimes Code.”).
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before one issuing authority in a magisterial district
within any of the judicial districts in which the charges
arising from the same criminal episode occurred.
Pa.R.Crim.P. 130.
Hence, “a condition precedent to the exercise by a single county to
jurisdiction in a case involving multiple offenses in various counties is [that]
the offense must constitute a single criminal episode.” Commonwealth v.
Witmayer, 144 A.3d 939, 946 (Pa.Super. 2016) (cleaned up). “Where a
number of charges are logically or temporally related and share common
issues of law and fact, a single criminal episode exists.” Commonwealth v.
Kohler, 811 A.2d 1046, 1050 (Pa.Super. 2002) (cleaned up). We have
expounded on these aspects of a single criminal episode as follows:
[To ascertain] whether a number of statutory offenses are
logically related to one another, the court should initially inquire
as to whether there is a substantial duplication of factual, and/or
legal issues presented by the offenses. The mere fact that the
additional statutory offenses involve additional issues of law or
fact is not sufficient to create a separate criminal episode since
the logical relationship test does not require an absolute identity
of factual backgrounds.
The temporal relationship between criminal acts will be a
factor which frequently determines whether the acts are logically
related. However, the definition of a single criminal episode
should not be limited to acts which are immediately connected in
time. Transaction is a word of flexible meaning. It may
comprehend a series of many occurrences, depending not so
much upon the immediateness of their connection as upon their
logical relationship.
Witmayer, supra at 946–47 (cleaned up).
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In denying Appellant’s pretrial motion, the trial court held that the
charges in Case 169 based upon possession and delivery of drugs in Allegheny
County were part of the same criminal episode as the charges in Case 168
concerning the drug delivery that resulted in Decedent’s death. Specifically,
the court cited the close temporal proximity of the events at issue, as well as
the identity of controlled substances and location of Appellant’s drug deliveries
to the various individuals. See Order, 8/28/19, at unnumbered 2-3.
Appellant argues that this was error because the two cases have “no
shared identity of factual backgrounds,” as no person in the corrupt
organization at issue in Case 168 “had any involvement with the criminal
activity alleged” in Case 169. See Appellant’s brief at 37. Appellant further
contends that there was no temporal relation between the cases, as the
allegations in Case 168 “primarily occurred in November 2018 and ended on
or before February 2019,” while the activity at issue in Case 169 “did not occur
until March 2019.” Id. at 38.
We agree with the trial court that the events in the two cases are
sufficiently logically and temporally related to constitute a single criminal
episode. During the time period at issue in both cases, Appellant operated a
continuous drug distribution operation out of 331 Noel Drive in Monroeville,
Allegheny County. As detailed in our discussion above, Appellant furthered
this operation through his association with the Fournesses until that fell apart
in February 2019, but continued selling the same drugs using the same
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packaging from the same location in the following weeks. The March 2019
deliveries were not a second, different criminal episode, but a continuation of
what Appellant had been doing all along. Compare Commonwealth v.
Hunter, 768 A.2d 1136, 1141 (Pa.Super. 2001) (holding trial of corrupt
organizations trial in county where homicide allegedly occurred was proper
because all the activities were connected to the drug dealing operation), with
Commonwealth v. Callen, 198 A.3d 1149, 1161 (Pa.Super. 2018) (holding
the abuse of children in one county through association with their stepfather
was not part of the same criminal episode as the abuse of another girl eight
years later in a different county facilitated by the defendant’s role as a
gymnastics teacher). No relief is due.14
____________________________________________
14 Even if the cases did not involve a single criminal episode such that it was
error for the trial court to decline to transfer Case 169 to Allegheny County,
we are convinced beyond a reasonable doubt that the error was harmless. In
granting the Commonwealth’s motion to join Cases 168 and 169 for trial, the
trial court ruled that the evidence of each was admissible in the trial of the
other. See Trial Court Opinion, 2/3/20, at 5-8 (explaining that joinder of
Cases 168 and 169 was proper because, inter alia, they “require overlapping
facts and evidence to be presented to prove both at trial”). Appellant does
not challenge that ruling on appeal, and we discern no error in it.
Furthermore, nothing in the certified record evinces impermissible forum
shopping on the part of the prosecution, but instead mere efficiency given that
the charges all involved Appellant’s drug dealing operation that was
discovered by a single investigation originating in Clarion County. Compare
N.T. Pretrial Motion, 8/12/19, at 37 (Commonwealth detailing that both cases
pertain to the same ongoing activity and investigation such that judicial
economy is served by trying them together), with Commonwealth v.
Callen, 198 A.3d 1149, 1163 (Pa.Super. 2018) (finding error was not
harmless where there appeared to be “the distinct possibility” that “the
Commonwealth was engaging in an act of impermissible forum shopping”).
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Next, Appellant claims that the trial court committed reversible error in
refusing to continue the hearing on his omnibus pretrial motion. “Whether a
continuance should be granted in order for the defendant to secure counsel of
his choosing is a matter within the discretion of the trial judge, and no
prophylactic rule exists for determining when a denial of a continuance
amounts to a violation of due process.” Commonwealth v. Gray, 608 A.2d
534, 547 (Pa.Super. 1992). As such, “a trial court’s decision to deny a request
for a continuance will be reversed only upon a showing of an abuse of
discretion.” Commonwealth v. Hernandez, 230 A.3d 480, 484 (Pa.Super.
2020) (cleaned up). It is well-settled that “an abuse of discretion is not merely
an error of judgment. Rather, discretion is abused when the law is overridden
or misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the
record.” Id. (cleaned up).
This Court will not find an abuse of discretion if the denial of the
continuance request did not prejudice the appellant. In order to
demonstrate prejudice, the appellant must be able to show
specifically in what manner he was unable to prepare his defense
or how he would have prepared differently had he been given
more time.
Commonwealth v. Broitman, 217 A.3d 297, 299-300 (Pa.Super. 2019)
(cleaned up).
____________________________________________
With nothing in the certified record even suggesting that the result in either
case would have differed had they been tried separately in different counties,
we conclude that Appellant’s venue issue merits no relief.
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The Rules of Criminal Procedure provide as follows, in pertinent part,
regarding continuance requests:
(A) The court or issuing authority may, in the interests of justice,
grant a continuance, on its own motion, or on the motion of either
party.
....
(C) When the matter is in the court of common pleas, the judge
shall on the record identify the moving party and state of record
the reasons for granting or denying the continuance. The judge
also shall indicate on the record to which party the period of delay
caused by the continuance shall be attributed and whether the
time will be included in or excluded from the computation of the
time within which trial must commence in accordance with Rule
600.
(D) A motion for continuance on behalf of the defendant shall be
made not later than 48 hours before the time set for the
proceeding. A later motion shall be entertained only when the
opportunity therefor did not previously exist, or the defendant was
not aware of the grounds for the motion, or the interests of justice
require it.
Pa.R.Crim.P. 106.
Here, Appellant sought a continuance in order to proceed with retained
counsel rather than his court-appointed attorney. “Both the Sixth Amendment
to the United States Constitution and Article I, Section 9 of the Pennsylvania
Constitution guarantee a defendant’s right to counsel.” Broitman, supra at
300. “In addition to guaranteeing representation for the indigent, these
constitutional rights entitle an accused to choose at his own cost and expense
any lawyer he may desire.” Id. (cleaned up). However, it is not an absolute
right. See, e.g., Hernandez, supra at 484. Our Supreme Court explained:
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[T]he right of the accused to choose his own counsel, as well as
the lawyer’s right to choose his clients, must be weighed against
and may be reasonably restricted by the state’s interest in the
swift and efficient administration of criminal justice. Thus, this
Court has explained that while defendants are entitled to choose
their own counsel, they should not be permitted to unreasonably
clog the machinery of justice or hamper and delay the state’s
efforts to effectively administer justice. At the same time,
however, we have explained that a myopic insistence upon
expeditiousness in the face of a justifiable request for delay can
render the right to defend with counsel an empty formality.
Commonwealth v. McAleer, 748 A.2d 670, 673–74 (Pa. 2000) (cleaned up).
In the case sub judice, the trial court observed that Appellant knew of
the hearing since June 2019, but waited until August to retain counsel, who
then filed a last-minute continuance request in the late afternoon of the Friday
before the Monday morning hearing.15 See Trial Court Opinion, 5/12/22, at
unnumbered 3. The court also noted that Appellant had able representation
at the hearing by Attorney Marshall, who had filed the motion at issue and
was still counsel of record. Id. at unnumbered 2. Furthermore, the court did
not mandate that Appellant proceed at the hearing with Attorney Marshall, but
instead gave Appellant the option to have Attorney Marshall’s timely omnibus
____________________________________________
15 The motion, time stamped 3:41 p.m. on Friday was filed more than forty-
eight hours before the 9:00 a.m. Monday hearing, but nearly all of the time
between was outside of normal business hours. While the filing may not be
late according to the letter of Rule 106(D), it certainly violates its spirit.
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pretrial motion dismissed, albeit without guaranteeing that Attorney Jobe
would be able to file a timely motion of his own.16 Id. at unnumbered 2-3.
Appellant argues that, in declining “to probe the reasons for
[Appellant’s] dissatisfaction with court-appointed counsel,” the fact that this
was the first continuance request and that there was a lack of any prejudice
to the Commonwealth rendered the trial court’s refusal to allow him to be
represented by Attorney Jobe in litigating pretrial motions a deprivation of his
constitutional right to counsel, amounting to a structural error mandating a
new trial.17 See Appellant’s brief at 26, 28. Appellant maintains that this
____________________________________________
16 Appellant asserts that the trial court indicated that it “would not permit
[Appellant’s] privately-retained counsel to file pretrial motions in the future.”
Appellant’s brief at 28. That is not accurate. What the court said is, “I am
not saying that your attorney is going to be able to file another motion.” N.T.
Pretrial Motion, 8/12/19, at 16. The court left open the possibility that “this
stuff” that Appellant wished to raise with Attorney Jobe would be considered
at a later date. Id. (“Maybe it will. Maybe it won’t.”).
17 Appellant relies on United States v. Gonzalez-Lopez, 548 U.S. 140(2006), for the proposition that the error alleged in this appeal is structural.
In Gonzalez-Lopez, the trial court erroneously deprived the defendant of
counsel of his choice by improperly denying the attorney’s admission pro hac
vice and precluded the defendant from even consulting or meeting with the
attorney throughout the trial. The U.S. Supreme Court determined that this
conceded trial court error pervaded the entire trial and was indeed structural
error, but it plainly stated: “This is not a case about a court’s power to enforce
rules or adhere to practices that determine which attorneys may appear before
it, or to make scheduling and other decisions that effectively exclude
a defendant’s first choice of counsel.” Id. at 152 (emphasis added). As
this case involves a scheduling decision that impacted only a pretrial hearing,
after which Appellant was represented by counsel of choice for additional
pretrial motions, trial, and sentencing, Gonzalez-Lopez is not on point.
Rather, we consider the prejudice analysis applicable to denials of continuance
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Court’s decision in Commonwealth v. Prysock, 972 A.2d 539, 545
(Pa.Super. 2009), “controls the outcome of this case because the facts in
Prysock are materially similar to those present here.” Appellant’s brief at 28.
In Prysock, appointed counsel informed the court just prior to jury
selection that the defendant was dissatisfied and wished to hire private
counsel. The court refused the request and proceeded with the defendant
objecting and asking for private counsel “because counsel would not allow him
to have the final say in jury selection.” Prysock, supra at 540. The next
day, private counsel attempted to enter his appearance but, unaware that half
of the jury had already been selected, indicated that he was not prepared to
go to trial that day. The court denied the request and trial proceeded with
appointed counsel over the defendant’s objections. “On several subsequent
occasions during trial, [the defendant] stated his dissatisfaction with
[appointed counsel’s] representation, and the trial court was forced to
intervene to resolve problems between [the two].” Id. at 541. This Court,
determining that the defendant’s “difficulties with appointed counsel pervaded
every aspect of the trial,” held that the denial of the continuance was
reversible error that warranted a new trial. Id. at 545.
We find Prysock materially dissimilar to the circumstances of the
instant case. Here, Attorney Jobe’s eleventh-hour motion, filed a week after
____________________________________________
requests noted above. See Commonwealth v. Broitman, 217 A.3d 297,
299-300 (Pa.Super. 2019).
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he entered his appearance, implicated not trial, but one pretrial hearing.
There is nothing in the certified record that reflects that Appellant had
“irreconcilable differences with his appointed counsel” that pervaded that
hearing, let alone the entire trial, or that he “received less than competent
representation” in litigating the motion. Commonwealth v. Brooks, 104
A.3d 466, 477 (Pa. 2014). Indeed, as we noted above, Appellant was unable
to identify any issue appropriate for a pretrial motion that Attorney Marshall
failed to raise when questioned on the record about Attorney Marshall’s motion
at a subsequent pretrial hearing at which Appellant was represented by
Attorney Jobe. See N.T. Rule 600 Hearing, 11/4/19, at 12-13. Further, as
the Commonwealth aptly notes, while Attorney Jobe filed and litigated other
motions prior to trial, he “did not file any motion to reconsider or additional
[omnibus pretrial motions] in the next year leading up to trial.”
Commonwealth’s brief at 18-19 (cleaned up).
Additionally, the facts that the trial court denied the written continuance
request before hearing from the parties and did not probe into the
Commonwealth’s position on the continuance are not determinative. Our
Supreme Court has indicated that neither the Commonwealth’s lack of
opposition to a continuance nor the trial court’s failure “to assume that the
request must be granted, and then probe the party (here, a defendant
represented by counsel) for support for the request, or to find weaknesses in
the request” evinces an abuse of discretion. See Brooks, supra at 477.
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While this Court may have ruled differently on the request, the certified
record does not support a finding that the trial court’s denial of the
continuance was manifestly unreasonable “or the result of partiality,
prejudice, bias, or ill-will[.]” Hernandez, supra at 484 (cleaned up). As
such, we must conclude that the trial court’s decision was a proper exercise
of its discretion. See Commonwealth v. Thomas, 879 A.2d 246, 262
(Pa.Super. 2005) (affirming denial of a continuance of a long-scheduled
hearing where the defendant “did not exercise his right to cho[o]se counsel at
a reasonable time nor in a reasonable manner”). Moreover, the certified
record before us contains no indication that Appellant was prejudiced by the
denial of the continuance. Consequently, no relief is due.
Appellant’s final issue challenges the trial court’s denial of his
suppression motion. Accordingly, we are governed by the following legal
principles:
In reviewing appeals from an order denying suppression, our
standard of review is limited to determining whether the trial
court’s factual findings are supported by the record and whether
its legal conclusions drawn from those facts are correct. When
reviewing the rulings of a trial court, the appellate court considers
only the evidence of the prosecution and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. When the record supports the
findings of the trial court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in error.
Our scope of review is limited to the evidence presented at the
suppression hearing.
Commonwealth v. Bellamy, 252 A.3d 656, 663 (Pa.Super. 2021) (cleaned
up).
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“The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution both protect against unreasonable
searches and seizures. A search conducted without a warrant is
constitutionally impermissible unless an established exception applies.”
Commonwealth v. Randolph, 151 A.3d 170, 176-77 (Pa.Super. 2016)
(cleaned up). Exigent circumstances are among the recognized exceptions.
See, e.g., Commonwealth v. Alexander, 243 A.3d 177, 208 (Pa. 2020)
(“[I]n some circumstances the exigencies of the situation make the needs of
law enforcement so compelling that the warrantless search is objectively
reasonable under the Fourth Amendment.” (cleaned up)).
However, it is well-settled that governmental “intrusion into a particular
area, whether in an automobile or elsewhere, cannot result in a
[constitutional] violation unless the area is one in which there is a
constitutionally protected reasonable expectation of privacy.”
Commonwealth v. Shabezz, 166 A.3d 278, 288 (Pa. 2017) (cleaned up).
Stated differently, “under Article I, Section 8, no less than under the Fourth
Amendment, a defendant cannot prevail upon a suppression motion unless he
demonstrates that the challenged police conduct violated his own, personal
privacy interests.” Commonwealth v. Millner, 888 A.2d 680, 692 (Pa.
2005). To establish the requisite expectation, “a defendant first must
manifest a subjective expectation of privacy in the object of the challenged
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search, and then demonstrate that society is willing to recognize that
expectation as reasonable.” Shabezz, supra at 288 (cleaned up).
Appellant repeatedly indicates in his appellate brief that he was arrested
on March 12, 2019, when the Monroeville police stopped his car and seized
heroin from it without a warrant. See Appellant’s brief at 41-42. On this
basis, he maintains that the seizure was unlawful because “at the suppression
hearing, no evidence was offered to establish the existence of an exigency” or
other exception to the warrant requirement. Id.
However, the Commonwealth aptly corrects Appellant’s misstatements,
observing that Appellant was not stopped in either of the two vehicles
connected with him, but was merely a passenger in Mr. Smith’s Toyota
that Mr. Smith was driving. See Commonwealth’s brief at 21. See also N.T.
Preliminary Hearing, 4/9/19, at 43-44, 57 (indicating that the vehicle in
question was Mr. Smith’s Toyota and Appellant was riding in the front
passenger seat). The Commonwealth asserts that Appellant proffered no
evidence to suggest “that he had a reasonable expectation of privacy in the
floorboards of a vehicle” in which he was a mere passenger and had no
ownership interest. Id. at 22.
Our review of the certified record confirms that no evidence proffered at
the suppression hearing suggested that Appellant had an expectation of
privacy in Mr. Smith’s vehicle. Therefore, Appellant failed to demonstrate that
the search of the vehicle following his lawful warrantless arrest required the
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evidence obtained therefrom to be suppressed. See, e.g., Millner, supra at
692 (reversing grant of suppression where the defendant “produced no
evidence that he owned the vehicle, nor did he produce evidence which
remotely suggested that he had any other connection to the vehicle which
could form the basis for so much as a subjective expectation of privacy,” nor
was there anything “in the Commonwealth’s evidence upon which [the
defendant] could rely to prove that he had an expectation of privacy in the
[vehicle] in question”); Commonwealth v. Burton, 973 A.2d 428, 436
(Pa.Super. 2009) (en banc) (rejecting challenge to suppression denial where
the defendant “failed to demonstrate that he had a reasonably cognizable
expectation of privacy in a vehicle that he did not own, that was not registered
to him, and for which he has not shown authority to operate”).
For the foregoing reasons, none of Appellant’s issues warrants relief
from this Court. Thus, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judge Murray joins this Memorandum.
Judge Pellegrini files a Concurring & Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
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