Com. v. Patrick, D. ( 2021 )

J-S11043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTAE RAMONE PATRICK :
:
Appellant : No. 758 WDA 2020
Appeal from the Judgment of Sentence Entered February 19, 2020
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000557-2019
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 30, 2021
Appellant, Dontae Ramone Patrick, appeals from the aggregate
judgment of sentence of four to nine years of confinement, which was imposed
after his jury trial conviction for persons not to possess, use, manufacture,
control, sell or transfer firearms (“possession of firearm prohibited”).1 We
affirm on the basis of the trial court opinion.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6105(a)(1).
J-S11043-21
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. See Trial Court Opinion, dated
September 21, 2020, at 1-16. Therefore, we have no reason to restate them.2
Appellant presents the following issues for our review:
1.) Whether the [t]rial [c]ourt erred in denying the Appellant,
Dontae Patrick’s, Pre-trial Motion to Suppress. The firearm seized
as evidence in this case should have been suppressed due to the
unreliability of the confidential informant and the materially
defective affidavit of probable cause attached with the search
warrant. Further, the aforementioned affidavit of probable cause
was based on “stale” information. This “stale” information should
have caused the Trial Court to find the search warrant to be
unconstitutional.
2.) Whether the [t]rial [c]ourt erred by overruling the
Appellant’s objection to the Commonwealth’s peremptory strike of
Potential Juror No. 1 - 105. The Appellant established, prima
facially, that the circumstances of the peremptory strike inferred
a strike based on race. The record does not reflect that the
Commonwealth established a racially neutral reason for the
aforementioned peremptory strike.
3.) Whether the [t]rial [c]ourt erred by sustaining the
Commonwealth’s objection during trial relating to the Appellant’s
cross-examination of the arresting officer as that cross-
examination pertained to missing witnesses.
4.) Whether the Commonwealth presented sufficient evidence
to prove the elements of Possession of [] Firearm Prohibited.
5.) Whether the jury’s verdict was against the weight of the
evidence presented by the Commonwealth at trial.
Appellant’s Brief at 3.
____________________________________________
2 Appellant filed post-sentence motions, which were denied on June 24, 2020.
On July 22, 2020, Appellant filed this timely direct appeal. Appellant filed his
statement of errors complained of on appeal on August 18, 2020. The trial
court entered its opinion on September 21, 2020.
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We begin by considering our standards of review for each specific issue
raised by Appellant. “In reviewing the denial of a suppression motion, our
role is to determine whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super.
2018) (citations omitted).
“The decision whether to disqualify a venireman is within the discretion
of the trial court and will not be disturbed on appeal absent a palpable abuse
of that discretion.” Commonwealth v. Ingber, 531 A.2d 1101, 1103 (Pa.
1987) (citations omitted); see also Commonwealth v. Wiggins, No. 1668
EDA 2015, unpublished memorandum at 11-12 (Pa. Super. filed July 19,
2019) (en banc).3
“The determination of the scope and limits of cross-examination are
within the discretion of the trial court, and we cannot reverse those findings
absent a clear abuse of discretion or an error of law.” Commonwealth v.
Handfield, 34 A.3d 187, 210 (Pa. Super. 2011) (citations omitted).
This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
____________________________________________
3Pursuant to Pa.R.A.P. 126(b)(2) (effective May 1, 2019): “Non-precedential
decisions . . . may be cited for their persuasive value.”
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established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
(Pa.Super. 2012)).
Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017).
Finally, “[w]hen reviewing a challenge to the weight of the evidence, we
review the trial court’s exercise of discretion.” Commonwealth v. Roane,
204 A.3d 998, 1001 (Pa. Super. 2019) (citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Mitchell P. Shahen, we conclude that Appellant’s issues merit no relief. The
trial court opinion comprehensively discusses and properly disposes of those
questions. See Trial Court Opinion, dated September 21, 2020, at 16–42
(finding: (1)(a) the facts averred in the affidavit of probable cause in the
current case concerning the execution of the controlled buys are analogous to
those in Commonwealth v. Dean, 693 A.2d 1360 (Pa. Super. 1997) (basis
for search warrant was information supplied by a confidential informant who
had made a controlled buy from the appellant less than 48 hours prior to the
execution of the search warrant), and, since this Court found the confidential
informant in Dean to be reliable, the informant in the current action must be
found to be reliable as well; (b) based upon the totality of circumstances, the
affidavit of probable cause set forth sufficient information to provide a
substantial basis for the issuing authority to conclude that probable cause
existed to issue the search warrant and that the warrant was not stale;
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(2) Appellant failed to make out a case of purposeful discrimination in the jury
selection and the proper course of action in this instance was to deny the
challenge under Batson v. Kentucky, 476 U.S. 79 (1986);4 (3) the trial court
was justified in refusing to permit Appellant to continue to cross-examine the
arresting officer with regard to SWAT team members who were present when
the search warrant was executed and Appellant arrested, because counsel for
the Appellant had made that same point and asked the same question with
slightly different phrasing on a number of occasions; (4) viewed in the light
most favorable to the Commonwealth, the prosecution presented sufficient
evidence that Appellant violated possession of firearm prohibited; and (5) the
direct and circumstantial evidence was not so ambiguous and uncertain that
the jury verdict somehow shocks the conscience, and Appellant has thus not
demonstrated that the guilty verdict was against the weight of the evidence).
Accordingly, we affirm on the basis of the trial court’s opinion. The parties
are instructed to attach the opinion of the trial court in any filings referencing
this Court’s decision.
Judgment of sentence affirmed.
____________________________________________
4 In Batson, the United States Supreme Court “upheld the constitutional
limitations on a prosecutor’s use of peremptory challenges to purposely
exclude members of a defendant’s race from participating as jurors.”
Commonwealth v. Dinwiddle, 542 A.2d 102, 104 (Pa. Super. 1998).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2021
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Circulated 04/05 /20JW1JJJ 7A :i
OPINION
IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
No. 557 of 2019
vs.
758 WDA 2020
DONTAE RAMONE PATRICK
Shahen, Mitchell P. SEPTEMBER 21, 2020
RULE 1925 (a) OPINION
INTRODUCTION
Dontae Ramone Patrick appeals from the February 19, 2020 judgment of sentence
entered by the Court of Common Pleas of Beaver County following his conviction in a
jury trial of possession of a firearm by aprohibited person'. The trial court sentenced
Appellant to four to nine years' incarceration. The Appellant filed post sentence motions
and by order dated June 24, 2020, the post sentence motions were denied and this appeal
to the Superior Court of Pennsylvania followed. Appellant filed a timely Notice of
Appeal, and he complied with the trial court's order to file aPa. R.A.P. 1925(b) concise
statement of errors complained of on appeal. This opinion is issued under the mandate of
the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(a)(1).
'18 Pa-C.S.A. §6105(a)(1).
1IPage
PROCEDURAL HISTORY
The relevant procedural history of this case is as follows. By criminal information
dated February 1, 2019, the Appellant was charged as follows, one (1) Count of
Possession of aFirearm Prohibited (2 nd Degree Felony) z;one (1) Count of Receiving
Stolen Property (2 nd Degree Felony) 3;and one (1) Count of Intentional Possession of
Controlled Substance by Person Not Registered (Ungraded Misdemeanor) 4.Each of these
charges stemmed from asearch warrant executed upon the premises located at 1108 Main
Street, Aliquippa, Pennsylvania on February 1, 2019.
Appellant filed an Omnibus Pre-Trial Motion on July 5, 2019. In the motion,
Appellant requested the suppression of all evidence recovered from his home at the time
of the execution of the search warrant on February 1, 2020. A hearing on this motion was
held on October 1, 2019, at which time the Commonwealth presented the testimony of
Special Agent Daniel Jena and offered the search warrant as evidence. The trial court
denied the Omnibus Pre-Trial Motion to Suppress Evidence on the record at the time of
the suppression hearing. Findings of fact were also made on the record at the conclusion
of the hearing.
Prior to the commencement of jury selection, the Commonwealth withdrew Count
Three (3) Intentional Possession of a Controlled Substance. Therefore, the trial
commenced on the remaining two (2) charges of Possession of aFirearm Prohibited and
Receiving Stolen Property. Jury Selection commenced on January 7, 2020 and the trial
2 18 Pa. C.S.A. §6105(c)
3 18 Pa. C.S.A. §3925(a)
4 35 P.S. 780-113(a)(16)
21
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court conducted trial from January 8, 2020 through January 9, 2020. After the
Commonwealth rested, the Appellant made a motion for judgment of acquittal as to
Count 2, Receiving Stolen Property, which was granted by the trial court. Thereafter, on
January 9, 2020, the Jury returned a verdict finding Appellant guilty of the only
remaining Count contained in the Information; Possession, or Use or Control of Firearm
Prohibited. The Jury also found, beyond areasonable doubt, that the firearm was loaded
at the time when it was possessed by the Appellant. Appellant was sentenced on
February 19, 2020 to forty-eight (48) to one hundred eight (108) months in a State
Correctional Institution on the only remaining count of Possession, or Use or Control of
Firearm Prohibited.
Following sentencing, the Appellant filed aPost-Sentence Motion for Relief and
then aSupplemental Motion for Post-Sentence Relief. The trial court denied Appellant's
motions without ahearing on June 24, 2020.
The Appellant filed the instant Appeal on July 22, 2020. He was ordered to file a
Concise Statement of Matters Complained of on Appeal on July 28, 2020. The Appellant
filed atimely Concise Statement on August 18, 2020.
31
Page
FACTUAL BACKGROUND
Pre-Trial
The Application for the Search Warrant was signed by the Honorable Kim Tesla
on February 1, 2020. 5 The affidavit of probable cause to that search warrant, in pertinent
part, provided: [i]n the early weeks of December 2018 the affiant, Agent Jena, received
information from areliable Confidential Informant ("CI") regarding amale selling drugs
in and around the City of Aliquippa. 6 Additional investigation revealed the identity of the
Appellant, Dontae Ramone Patrick, with a residence of 1108 Main Street, Aliquippa,
Pennsylvania, 15001.' On or about January 15, 2019, Beaver County Drug Task Force
Agents (hereinafter "Agents") conducted acontrolled purchase of crack cocaine outside
Appellant's residence utilizing the CI. $ A second controlled purchase of crack cocaine
was conducted outside the Appellant's residence utilizing the same C1. 9 The search
warrant was drafted with multiple incomplete sentence fragments where it appeared that
the affiant started the substantive content of anumber of paragraphs in the affidavit of
probable cause in the middle of the thought that each such paragraph was intended to
convey.
The Appellant filed an Omnibus Pre-Trial Motion which contained amotion to
suppress evidence that was seized at the Appellant's home pursuant to the February 1,
2019 search warrant. The Appellant contended that the information contained in the
5 Commonwealth Exhibit 1, Omnibus Hearing 10/1/2019 (Hereinafter, "SH, Ex I")
6 Id. at 14.
7 Id. at ¶5.
sId. at 1111 7-20.
9 Id. at ¶¶ 21-29.
41
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information in the affidavit of probable cause was stale and that the search warrant was
materially defective. Paragraph Seven (7) through paragraph twenty (20) of the affidavit
of probable cause summarized a controlled purchase between the Appellant and a
confidential informant that occurred on January 15, 2019. The first claimed defect arose
out of the content of paragraphs twenty-one (21) and twenty-two (22) of the affidavit of
probable cause and, the first word of paragraph twenty-three (23). Each of those
paragraphs contained incomplete sentences that referenced an apparent second controlled
purchase between the same confidential informant and the Appellant. The relevant
information that was omitted from content of the affidavit of probable cause was the date
of the second controlled purchase. The testimony at the October 2, 2019 suppression
hearing by Agent Jena revealed that the information that was inadvertently left out of the
affidavit of probable cause was that the second controlled purchase occurred on January
30, 2019.
The other defect concerned the allegations in the affidavit of probable cause
regarding the first controlled purchase of January 15, 2019. Paragraphs seven (7)
through thirteen (13) of the affidavit of probable cause summarized the events
surrounding the January 15, 2019 controlled purchase that occurred between 1000 hours
through 1158 on January 15, 2019 during the encounter with the confidential informant.
Paragraphs fourteen (14) through nineteen (19) of the affidavit of probable cause recited
the events that occurred after the 1158. The events referenced in paragraphs 14- 19 that
occurred subsequent to the event that was noted to take place at 1158 were incorrectly
51
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alleged to have occurred from 1103 hours to 1133 hours. The second defect related to
this obvious incorrect time sequence.
During the suppression hearing, the Commonwealth relied the cotent to the first
page of the application for search warrant where there is a box that is designated as
"Date[s] of Violation." In that block on the February 1, 2019 search warrant application,
Agent Jena wrote that the violations occurred within the past forty-eight (48) hours. The
Commonwealth's contention and the on the record findings of the trial court were that the
placing 48 hour time frame in the "Date of Violation" box sufficed to advise the issuing
authority on the face of the search warrant application that the second controlled purchase
occurred within 48 hours of the application for the search warrant.
At the conclusion of the October 2, 2019 hearing, the trial court found that the
affidavit of probable cause contained enough information to support aprobable cause
determination by the issuing authority. The trial court's findings and conclusions were
announced on the record and the suppression was denied.
Jury Voir Dire
During the voir dire proceedings which occurred on January 7, 2020, an issue arose
concerning a Batson 10 claim that was raised by the Appellant. This Batson issue
concerned apotential juror who was identified as prospective Juror No. 1-105. Juror 1-
105 was a female African American and the Appellant is a male African American.
During voir dire of this prospective juror, she stated that she had aclose friend who was
charged as a defendant in a double homicide case that was filed and previously
10 Batson v. Kentucky, 476 U.S. 79 (S. Ct. 1986)
61
Page
prosecuted in Beaver County. The prospective juror summarized her friend's
involvement in that case as such:
Basically he got sentenced to 32 to 70 years because his cell phone was
involved in adouble homicide crime."
She further stated that she was upset with the way the case ended but that she "accepted it
for what it was because what else can you do?" She then testified that the experience of
her friend'
scase would not cause her to "have any kind of ... preconceived notion or any
kind of apprehension to be on [the jury in this case] because of what happened in [her
friend'
scase].>,lz
The prospective juror also answered the Juror Questionnaire inquiry number 9
concerning the likelihood that the juror would be less likely to believe the testimony of a
police officer by responding affirmatively to that question. She explained the answer on
her Juror Questionnaire form by saying that she personally witnessed on multiple
occasions,including the prosecution of her friend for double homicide or "just being
pulled over"herself "how law enforcement can just lie to basically to get to,get what
they need out of something or somebody ..." 13 During the direct exam of that
prospective juror, she stated that she could follow the trial court's instructions regarding
the manner in which all witnesses were to be considered. When counsel for the
Appellant asked a follow-up question regarding the prospective juror'
s ability to
•' Id. at pages 8-9.
i2 Id.'3 Trial Notes of Testimony (
Voir Dire proceedings) January 7,2020 —Page 9.
71Page
appropriately consider the testimony of apolice officer, she stated that she would keep an
open mind and that she "would definitely listen to what he has to say." 14
The prospective juror was also examined by the Assistant Beaver County District
Attorney. He asked the potential juror toexplain her statement that the police officers lie
to get what they want. She then recounted apersonal story where the she and her friends
were pulled over by apolice officer and that the officer assumed that the prospective
juror and her friends were doing something improper when, in fact, they were doing
nothing illegal or improper. She then recounted how that officer then reported to another
officer who arrived on the scene that the prospective juror and her friends were engaging
in improper conduct and that second officer "automatically believed [the other officer]
before even hearing our side of the story. 15 She then went on to say that in situations that
she has observed police to be in, that she has observed police officers to have "lied or
manipulated the truth to get a verdict or a conviction or anything of that sort". "
However, she did state that she would be able to judge the testimony of Officer Jena
without having her assessment of his potential testimony impacted by her negative
experiences with law enforcement.
A Batson hearing was held immediately after the objection was made and the parties
acknowledged that the prospective juror was a member of a cognizable racial group.
The race neutral explanation offered by the Commonwealth for using a peremptory
challenge was twofold. The first reason had to do with the prospective juror's
14 Id. @ Page 10.
s̀ Id. @ Page 13.
16 Id.81
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relationship with the Defendant in the Beaver County double homicide case and the
Commonwealth's perceived belief that the prospective juror was dissatisfied with the
way that the justice system worked in that case. The second reason was the prospective
juror's stated belief that the police officers would lie to form their cases and ultimately
get convictions in those cases. The Commonwealth then noted that the main witness
would be apolice officer, and as such, the Assistant District Attorney felt that any person
who believes that police officers lie to form their cases cannot be fair and impartial. It
was for those two reasons that the Commonwealth attorney opined his belief that the
prospective juror could not be afair and impartial juror in the case.
The Batson objection made on behalf of the Appellant was overruled. The trial
court found that there was aprima facie showing that the circumstances gave rise to an
inference that the prosecutor struck the juror on account of race and then the burden then
shifted to the Commonwealth to articulate a race neutral explanation for striking the
prospective juror. The trial court found that the reasons offered by the Commonwealth,
in particular the Commonwealth's concerns that the prospective juror perceived police
officers to be liars, supported the Commonwealth's action in exercising aperemptory
strike for that prospective juror.
Trial
The trial on this matter commenced on January 8, 2020 and concluded on January
9, 2020. The case started when, on February 1, 2019, asearch warrant was executed at
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the Appellant's residence located at 1108 Main Street, Aliquippa, Pennsylvania." Among
the items seized that day from the home of the Appellant were aTaurus 9mm firearm, a
Digiweigh Digital Scale, PA ID Card, Back of Rubber Bands, Bag of 13.4 g. of
marijuana, two (2) smart phones, silver digital scale, and abox of sandwich bags.' 8
The Commonwealth called Pennsylvania Attorney General Narcotics Agent
Daniel Jena to testify as to the events that occurred during the execution of the search
warrant. The only other witness the Commonwealth presented was the registered owner
of the firearm recovered at the Appellant's residence.
Agent Jena testified at the time of the execution of the search warrant the target of
the investigation was the Appellant, Dontae Patrick. 19 The residence that was searched
was 1108 Main Street, Aliquippa. 20 He testified that aSWAT team was utilized to secure
the residence .
21 He indicated that when he personally entered the residence, the SWAT
team had already detained everyone located inside the residence in the front living
room. 22 The parties that were detained were the Appellant, Appellant's mother,
Appellant's wife, and the Appellant's three children. 23 Agent Jena spoke with the
Appellant in the kitchen of the residence24 . During that conversation, the Appellant
17 Search Warrant, Return of Service and Inventory.
Is Id.19 Trial Transcript, 1/912020, p. 52 (hereinafter "TT2)
20 Id.21 Id.22 Id.23 Id.24 Id.101Page
advised Agent Jena that there was a firearm upstairs in the bedroom under the
mattress 25 and that the Appellant "got it [firearm] off the street. „26
Agent Jena testified that he did personally go into the bedroom. 27 He indicated that the
room appeared to be used and that he was informed by other Agents that the Appellant's
Pennsylvania Identification Card was located either on the nightstand or dresser. 28 Agent
Jena stated that Agent Shawn Kriley assisted him with lifting up the mattress, and they
located the firearm on top of the box spring. 29 The firearm recovered was ablack Taurus
9mm with five (5) live rounds in the chamber. 30
Agent Jena testified that he did advise the Appellant that afirearm was recovered in
the bedroom and that his wife could also be charged in connection with the firearm. 31
Agent Jena testified that the Appellant responded stating that the firearm was his. 3Z Agent
Jena then asked the Appellant if he would be willing to write astatement to that effect
and the Appellant then wrote out ashort statement. 33 The following written statement was
read into the record: "The cop came to my house for acause Idon't know, but they found
agun under the bed, which Itold them it was mine. "34
" Id. at 55-56.
26 Id. at 62.
27 Id.
28 Id. at 58-59.
29 Id. at 59.
30 Id.
" Id. at 67-68.
12 Id. at 68.
" Id. at 68-69.
34 Id. at 74.
111Page
On cross-examination, Agent Jena was questioned regarding the procedure upon
which the Agents gained entry into the residence. 35 Agent Jena testified that the SWAT
team was utilized to gain entry in to the residence. 36 He indicated that prior to the time
that the eight (8) 37 member SWAT team entered the house, aflash bang was thrown into
the window of the house. 38 After the flash bang was used, the SWAT Agents used aram
to break the locks on the door and enter the residence .39 The house was cleared by the
SWAT team and all individuals located in the house were secured. After Agent Jena
entered the home, he immediately went into the kitchen to set up his area .40 Agent Jena
advised that his search team consisted of an additional eight (8) agents. 41
During the cross examination of Agent Jena, he was questioned on numerous
occasions about the failure of the Commonwealth to have any of the other law
enforcement officials who were involved in the execution of the search warrant testify at
trial. At one point, Frank N. Martocci, counsel for the Appellant, stated that the other
members of the search team could have been available to testify "to what you [Agent
Jena] just testified about. 42 " On pages 120 and 121 of the Notes of Testimony of January
8, 2020, Mr. Martocci continued to point out that at least fifteen (15) other law
enforcement officers were at the Appellant's home on the day of the search and that none
of them were going to provide testimony for the Jury to hear. He repeatedly pointed out
35 Id. at 78 et seq.
" Id. at 79.
31 Id. at 82.
3s Id. at 79-80.
3g Id. at 83.
49 Id. at 94.
41 Id. at 95.
42 Notes of Testimony of January 8, 2020 Trial -Page 98.
121Page
that those fifteen (15) other officers could have testified but that they were not available
and he concluded his cross examination as follows: 43
Mr. Martocci: Okay. So like Isaid, of the one, being you, and then the 15
that are left, the other 15 aren't here in court. They never came here today;
right?
Agent Jena: Correct.
Mr. Martocci: Okay. And these 15 other people had the opportunity to at
one point in time observe everything from start to finish that was going on
inside my client's house; right?
Agent Jena: See that's kind of like abroad question.
Mr. Martocci: Well —
Agent Jena: Ican't really answer that.
Mr. Martocci: Imean they, they could be considered witnesses in other
words, isn't that true, because they would have witnessed what happened
inside that house; right?
Agent Jena: Iam what, to what though? Imean you could —
Mr. Martocci: Whatever was going on.
Agent Jena: But I mean you, who are you going to call for what
reasoning? You would, like Imean obviously I'm here because Iwas,
I'm obviously the Affiant. Ifound the gun, but like aSWAT member,
what would you call them for?
Mr. Martocci: Well, Iunderstand that, and that's true. You were the one
that took in the gun and you were the lead investigator on this case, but you
would admit that other people that were there could have testified to their
own activities because you were doing everything by yourself in there;
right?
Agent Jena: Correct. Yeah. They could've.
43 Id. at 120 et seq.
131Page
Mr. Martocci: They could've?
Agent Jena: Uh-hum.
Mr. Martocci: But they're not?
Agent Jena: Correct.
Mr. Martocci: And since they're not here, these ladies and gentlemen here
they're never going to hear from them; right?
Agent Jena: Correct. 44
Agent Jena was subjected to re-cross examination and he was once again
confronted with regard to what happened when the SWAT team entry was made into the
residence. 45 Mr. Martocci was pointing out to Agent Jena that if the members of the
SWAT team were brought to court to testify that they could provide testimony to the Jury
concerning the exact actions taken by the SWAT team. Mr. Martocci then asked the
following question about the SWAT team members who were not going to be called for
testimony at trial.
Mr. Martocci: And the reason you can't tell us any of that stuff is because
the people who did it aren't here to testify. Like Isaid those people are
witnesses. They could've came in here and said how it all went down, right,
but they're not here? I'm talking about the SWAT team people; right?
Agent Jena: Correct.
Mr. Martocci: So these guys are never going to know; right?
Agent Jena: Ithink that's, that's adouble-edged sword, Frank.
" Id. at 120-122.
as Id. at 127 et seq
141Page
Mr. Martocci: Well, they're never going to know because --
Agent Jena: Imean —
Mr. Martocci: -- they're not here.
Agent Jena: It has nothing to do with 46
At that point, counsel for the Commonwealth objected on the basis that the
Appellant had access to all the witnesses and that Mr. Martocci should not then be
permitted to pursue that line of questioning any further. The Commonwealth's attorney
also based his objection on relevance. During the ensuing argument on the objection,
counsel for the Appellant stated "I'm not going to go much further with it anyway, but,
because Ithink the points made. They didn't bring these people. "4' The objection was
sustained primarily based upon the reason that there was no showing that these witnesses
were unavailable to the Appellant.
The Commonwealth next called the registered owner of the firearm, Mark Stephen
Jones, to testify that he reported the firearm as stolen. 48 Stipulations were read into the
record regarding the Appellant's status as aperson prohibited by law to possess afirearm
on the date of the offense and that the firearm was operable and capable of being fired at
the time it was found .49 The Commonwealth rested and the Appellant presented no
testimony. At the conclusion of the Commonwealth's case, the Trial court granted the
46 Id.
41 Id. @ 132.
48 Id. at 149-151.
49 Id. at 147-148.
151Page
Appellant's oral Motion for Judgment of Acquittal with regards to the Count of
Receiving Stolen Property. 50
ISSUES
Appellant's concise statement contains five (5) issues for review which have been
re-ordered and consolidated for ease of disposition.
1. Whether the trial court erred in denying the Appellant's pre-trial motion to
suppress on October 2, 2019?
2. Was the evidence sufficient to support the conviction?
3. Was the verdict contrary to the weight of the evidence?
4. Whether the trial court erred in overruling the Appellant's objection to the
Commonwealth's peremptory strike of Potential Juror No. 1-105?
5. Whether the tial court erred in sustaining the Commonwealth's objection to
Appellant's questioning of Agent Jena regarding the Commonwealth's
decision not to present the testimony of the SWAT team members who
secured entry into the Appellant's home on the day of the search of that
home?"
ANALYSIS
Motion to Suppress Items Seized
When a defendant files a motion to suppress and establishes standing, the
Commonwealth is required to prove that it did not obtain the challenged evidence in
violation of the defendant's rights. Commonwealth v. West, 834 A.2d 625, 629 (Pa.
Super. 2003). The Commonwealth must prove by apreponderance of the evidence that
so Id. at 163-169.
161Page
the challenged evidence is admissible. Commonwealth v. Smith, 784 A.2d 182, 186 (Pa.
Super. 2001).
In Pennsylvania, "the Fourth Amendment to the United States Constitution and
Article I, Section 8of the Pennsylvania Constitution protect citizens from unreasonable
searches and seizures." Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013)
(internal alteration and quotation marks omitted). "Where there exists a reasonable
expectation of privacy, Article I, Section 8and the Fourth Amendment generally require
police to obtain awarrant, issued by aneutral and detached magistrate and founded upon
probable cause, prior to conducting asearch or seizure of aperson and/or aperson's
property, unless one of the few well delineated exceptions apply." Commonwealth v.
Loughnane, 173 A.3d 733, 741 (Pa. 2017).
The affidavit in support of the application for the search warrant in the instant case
was not well drafted. However, the duty of areviewing court is to ensure that the issuing
authority had a substantial basis for concluding that probable cause existed.
Commonwealth v. Singleton, 603 A.2d 1072, 1073 (Pa. Super. Ct. 1992). The issuing
authority is only required to find a fair probability of criminal activity based upon the
four corners of the affidavit of probable cause and the determination that probable cause
existed must be given deference. Id. "Probable cause is based on a finding of the
probability, not a prima facie showing of criminal activity, and deference is to be
accorded amagistrate's finding of probable cause." Commonwealth v. Dean, 693 A.2d
1360, 1365 (Pa. Super. Ct. 1997).
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The standard for evaluating whether probable cause exists for the issuance of a
search warrant is the "totality of the circumstances" test: the issuing authority must make
apractical, common sense decision, whether, given all the circumstances set forth in the
affidavit before him, including the veracity and basis of knowledge of persons supplying
hearsay information, there is afair probability that contraband or evidence of acrime will
be found in aparticular place. Id. The duty of areviewing court is simply to ensure that
the magistrate had a "substantial basis for ... conclud[ing] that probable cause
existed." Commonwealth v. Baker, 513 Pa. 23, 26, 518 A.2d 802, 803-04 (1986)
(citation omitted).
In making a probable cause determination, the reviewing court must limit the
inquiry to the information within the four corners of the affidavit submitted in support of
probable cause when determining whether the warrant was issued upon probable cause.
Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013). Pennsylvania Rule of
Criminal Procedure 203 provides, in relevant part, that:
(B) No search warrant shall issue but upon probable cause supported
by one or more affidavits sworn to before the issuing authority.... The
issuing authority, in determining whether probable cause has been
established, may not consider any evidence outside the affidavits.
(D) At any hearing on amotion for the []suppression of evidence,
or for suppression of the fruits of evidence, obtained pursuant to asearch
warrant, no evidence shall be admissible to establish probable cause other
than the affidavits provided for in paragraph (B).
Pa.R.Crim.P. 203. However, it is clear that search warrant affidavits are to be read in a
common sense and realistic fashion. United States v. Ventresca, 380 U.S. 102 (S.Ct.
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1965); Commonwealth v. Billock, 289 A.2d 749 (Pa. Super. 1972). Furthermore, the
affidavit is to be considered as awhole, Commonwealth v. Bryant, 372 A.2d 880 (Pa.
Super. 1977), and a successful attack on part of it will not invalidate the warrant if
enough remains to establish probable cause, Commonwealth v. Tucker, 384 A.2d 938(Pa. Super. 1978).
Reliability of the Confidential Informant
A defendant has the right to test the veracity of the facts recited in the affidavit of
probable cause. Commonwealth v. James, 69 A.3d 180, 187 (Pa. 2013). "To rule
otherwise, would permit police in every case to exaggerate or expand on the facts given
to the magistrate merely for the purpose of meeting the probable cause requirement, thus
precluding adetached and objective determination." Commonwealth v. Hall, 302 A.2d
342, 344 (Pa. 1973). Where the issuance of awarrant is based on information provided by
aconfidential informant, "[i]f the informant was reliable, the search warrant was issued
with probable cause[;] if the informant was proven to be without reliability, the warrant
was improperly issued." Id. at 345.
In this case, the probable cause affidavit refers to two "controlled buys" using the
same confidential informant who obtained crack cocaine from the premises located at
1108 Main Street, Aliquippa, Pennsylvania. Both controlled buys referenced in the
probable cause affidavit occurred when the confidential informant met with the Appellant
at the property located at 1108 Main Street, Aliquippa. Both of these buys were made in
a carefully controlled environment and each "controlled buy" was discussed in great
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detail in the affidavit of probable cause. Both "controlled buys" were made after a
telephone exchange with the Appellant.
The execution of the controlled buys establishes the reliability of the confidential
informant or informants. Commonwealth v. Dean, 693 A.2d 1360, 1366, n. 4(Pa. Super.
Ct. 1997) (despite alack of "facts in the affidavit that allege that the informant had been
used in the past or that he had intimate knowledge of appellant, the fact that such
information was corroborated by the police with acontrolled buy provides substantial
reliability").
In Dean, the defendant claimed that the search warrant used to gain entry to his
residence was not supported by probable cause because the affidavit contained only
"vague assertions by a confidential informant without setting forth the basis for the
informant's knowledge and without providing for that informant's reliability...." Id. at
1365. The Superior Court concluded that the information in the affidavit established
probable cause sufficient to support the issuance of the search warrant. Id. at 1366 & n. 4.
In Commonwealth v. Hawkins, 45 A.3d 1123, 1127 (Pa.Super.2012), the Court
determined that an officer's affidavit set forth sufficient information to provide a
substantial basis for amagistrate to conclude that probable cause existed to issue asearch
warrant after using aconfidential informant to complete acontrolled narcotics purchase.
Id. The Hawkins Court held, however, that if probable cause is to be based, in part, on a
controlled purchase, an officer must take "adequate precautions to ensure substantial
reliability of the controlled buy [will] corroborate information already obtained." Id. at
1129. The search warrant in this case states that the officer was aware that the
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confidential informant "provided information against their own penal interest; he/she has
cooperated with law enforcement on aprevious investigation that resulted in the seizure
of illegal drugs and the arrest(s) of drug traffickers, has provided facts and details in this
(and previous) investigation that have been independently corroborated by law
enforcement. "51 The confidential informant identified the Appellant by his nickname,
"Pat", and he/she further provided the address of the Appellant. The officer was able to
verify that "Pat" was identified as the Appellant and the officer noted in the probable
cause affidavit that he had prior knowledge that "Patrick has acriminal history including
two prior convictions for Possession with Intent to Deliver a Controlled Substance
(Felony) on 09/09/2004 and 07/22/2009. "52 This information is found to be sufficient
additional information which was corroborated by the controlled buys that were
summarized in the affidavit of probable cause.
Other cases have held that information provided by aconfidential informant that is
corroborated by a controlled buy support a finding of probable cause. See e.g.
Commonwealth v. Baker, 615 A.2d 23 (Pa. 1992) (Facts sufficient to establish probable
cause for issuance of search warrant where informant's information implicating defendant
as seller was corroborated by police officer's first-hand observations when he gave
informant money to purchase cocaine and saw informant enter residence and return from
residence with cocaine); Commonwealth v. Luton, 672 A.2d 819, 821 (Pa. Super. 1996)
(Police-conducted "controlled buy" sufficiently corroborated neighbors' observations
51 SH, Ex. Iat ¶4.
si Id. at ¶5.
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alleging drug operations from defendant's home); Commonwealth v. Johnson, 517 A.2d
1311 (Pa.Super.1986) (Finding an abundance of probable cause where acontrolled buy
was conducted within 48 hours of the execution of the search wherein defendant left
residence and met with informant who returned to police with drugs).
The facts recited in the warrant in this case are similar to those in Dean: within 48
hours before application for the warrant, aconfidential informant was searched and found
to be free of any controlled substance and money. The Cl was given bills whose serial
numbers had been recorded. The CI stated he or she would buy crack cocaine from
Appellant by meeting him in the alley behind his residence located at 1108 Main Street,
Aliquippa. The transactions took place and the affiant recovered crack cocaine from the
informant on two occasions. Because of the similarity between the facts averred in the
affidavit in this case and those in Dean, the execution of the controlled buys in this case
is afactor that establishes the reliability of the confidential informant.
Staleness
The Appellant also avers that the information contained within the search warrant
was "stale" and contained material defects, thereby rendering the Search Warrant invalid.
The staleness and defect issues are related in that Appellant argues that clerical errors that
led to the failure to include the date of the second controlled purchase, January 30, 2019,
in the sequential paragraphs of the affidavit of probable cause presented a factual
circumstance to the issuing authority that referenced only a controlled purchase that
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occurred on January 15, 2019, 17 days before the application for and issuance of the
February 1, 2019 search warrant.
"The requisite probable cause [for asearch warrant] must exist at the time the
warrant is issued and be based on facts closely related in time to the date of issuance."
Commonwealth v. T. Jones, 484 A.2d 1383, 1387 (Pa. 1984). "Settled Pennsylvania law
establishes that stale information cannot provide probable cause in support of awarrant."
Commonwealth v. Janda, 14 A.3d 147, 158 (Pa. Super. 2011). "There is no hard and
fast rule regarding what constitutes stale information; such determinations must be made
on acase-by-case basis." Commonwealth v. Vergotz, 616 A.2d 1379, 1382 (Pa. Super.
1992), appeal denied, 627 A.2d 179 (Pa. 1993). The court applies a reasonableness
standard when it determines the time limits to be placed on search warrants. Id."Importantly, age of the information supporting a warrant application is a factor in
determining probable cause. If too old, the information is stale, and probable cause may
no longer exist. Age alone, however, does not determine staleness. The determination of
probable cause is not merely an exercise in counting the days or even months between the
facts relied on and the issuance of the warrant. Rather, we must also examine the nature
of the crime and the type of evidence." Janda, supra, at 158-59 (internal citations
omitted). "Mere lapse of time between discovery of criminal activity and issuance of the
warrant will not necessarily dissipate probable cause." Commonwealth v. Dennis, 618
A.2d 972, 981 (Pa. Super. 1992), appeal denied, 634 a.2d 218 (Pa. 1993). The
suppression or exclusion of evidence is a"most extreme remedy" that can be justified
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only when it is necessary to vindicate fundamental rights or to correct or deter police
abuse. Commonwealth vDennis, 618 A.2d 972, 981 (Pa. Super. 1992).
The trial court found that information in the "Date of Violation" box of the search
warrant, when read in conjunction with the total application for search warrant,
supported, through a reasonable, common sense interpretation of the available
information, that the last criminal violation referred to in the affidavit of probable cause
occurred no later than 48 hours before application for the search was made by Agent
Jena. Under these circumstances, it cannot reasonably be suggested that information a
day or two old, as here, is "stale." Commonwealth v. Albert, 399 A.2d 1106 (Pa. Super.
1979) (4 days); Commonwealth v. Allen, 324 A.2d 437 (Pa. Super. 1974) (9 days);
Commonwealth v. Jackson, 323 A.2d 799 (Pa. Super. 1974) (9 days).
The search warrant application in the instant case did not have the date and time of
the second controlled buy specifically indicated on affidavit of probable cause. However,
the application indicated that the most recent event occurred within forty-eight (48) hours
of the application for search warrant. Additionally, Agent Jena testified that the second
controlled buy occurred on January 30, 2020 and it was due to aclerical error that the
date was omitted when copying the information between computer applications. s3
Although the case law is clear that "[i]n determining whether the warrant is
supported by probable cause, the [issuing authority] may not consider any evidence
outside the four-corners of the affidavit." Commonwealth v. Sharp, 683 A.2d 1219,
1223 (Pa. Super. 1996) (citations omitted). The standard for evaluating asearch warrant
53 SHT at 17-18.
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is a"totality of the circumstances" test as adopted in Commonwealth v. Gray, 503 A.2d
921 (Pa. 1985). The issuing authority must make a"practical common sense decision
whether, given all the circumstances set forth in the affidavit before him, including the
``veracity' and ``basis of knowledge' of person supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be found in a particular
place." Commonwealth v. Dean, 693 A.2d 1360, 1365 (Pa. Super. 1997)(citations,
quotations, and emphasis omitted).
At the conclusion of the October 2, 2019 suppression hearing in this case, the trial
court determined that paragraphs 21-23 of the affidavit of probable cause contained
clerical errors. However, the trial court concluded that sufficient detail regarding the date
of the alleged most recent violation was provided elsewhere within the application for
search warrant presented to the issuing authority. Namely, the "Date[s] of Violation" box
on the first page of the search warrant application advised the issuing authority of a
violation that occurred within the "48 hours."
In Commonwealth v. Ryerson, 817 A.2d 510 (Pa. Super. 2003), the affidavit of
probable cause did not specifically state the date that the officer observed the contraband.
Id. However, the application for the search warrant did indicate the date of the violation
in question. Id. The Superior Court held that although the affidavit of probable cause did
not specifically state the date the contraband was observed, the fact the application for
search warrant did include a date in which the contraband was observed and that
application for search warrant was before the issuing authority at the time the search
warrant was issued, the information was not stale and the search warrant was valid. Id.251Page
This combination of facts which point to acourse of dealing that continued up to
within 48 hours of the application for the search warrant is another fact which makes the
search warrant in this case sufficient to "survive the staleness charge." Commonwealth
v. Baker, 513 Pa. 23, 29-30, 518 A.2d 802, 805 (1986). In Baker, the Supreme Court
reasoned that "the numerous occasions on which the informant had contact with the
defendant were indicative of acourse of dealing between the informant and the actor
which supplied the veracity and basis of knowledge for [the informant's] information
about the crime at hand." Id. In that case, the Pennsylvania Supreme Court held that in
viewing the application for the warrant in that case which did not identify the timing of
the history of the dealings between the informant and the defendant "in its totality ..., the
warrant was properly issued." Id.The issuing authority in the instant case had the information before him at the time
the search warrant was sought that the most recent activity occurred within forty-eight
(48) hours of the issuance of the search warrant and that the recent activity was part of
the course of dealings between the Appellant and the confidential informant. The
affidavit of probable cause in this case explains how the matter was called to the attention
of the investigating authorities, the steps taken to verify the tip, and the timing of the
investigation. Based upon the totality of circumstances, the trial court concluded that the
affidavit of probable cause set forth sufficient information to provide asubstantial basis
for the issuing authority to conclude that probable cause existed to issue the search
warrant and that the warrant was not stale.
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Sufficiency of the Evidence
The standard of review for evaluating asufficiency of the evidence claim is well-
settled.
In reviewing the sufficiency of the evidence, we must determine whether
the evidence admitted at trial, and all reasonable inferences drawn from that
evidence, when viewed in the light most favorable to the Commonwealth as
verdict winner, was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Further, the trier of fact is free to believe
all, part, or none of the evidence.
Commonwealth v. Jordan, 2019 PA Super 173 (Pa. Super. Ct. May 29, 2019)(citations
omitted). "[T]he facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence." Commonwealth v. Colon-
Plaza, 136 A.3d
521, 525-26 (Pa. Super. 2016). It is within the province of the fact-finder to determine
the weight to be accorded to each witness's testimony and to believe all, part, or none of
the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa. Super. 2015).
Possession of aFirearm Prohibited
Appellant first alleges that his conviction should be reversed because the
Commonwealth failed to present sufficient evidence that the Appellant possessed the
firearm at issue. The Appellant contended that the only evidence presented by the
Commonwealth regarding the possession of the firearm stemmed from the statement
made by the Appellant to Agent Jena and that the statement was not voluntary. Appellant
then alleges that the finding that Appellant possessed the firearm in question is also
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against the weight of the evidence presented by the Commonwealth for essentially the
same reasons as cited in his sufficiency of evidence claim.
The standard of review for challenges to the sufficiency of the evidence is well-
settled law. See, e.g., Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001). The standard applied 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 areasonable doubt." Id. at 582 (citing
Commonwealth v. Williams, 650 A.2d 420, 424 (Pa. 1994)). When applying this test,
the court "may not weigh the evidence and substitute [its] judgment for the fact-finder."
DiStevano, 782 A.2d at 582. Additionally, the facts and circumstances established by the
Commonwealth "need not preclude every possibility of innocence." Id. Notably, in
making adetermination, "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. Gooding, 818 A.2d 546, 549 (Pa. Super. 2003)(intemal
citations omitted).
To establish Persons Not to Possess Firearms, the Commonwealth must prove
beyond areasonable doubt that adefendant (1) has been convicted of certain enumerated
offenses, or otherwise satisfies certain conditions, and (2) possesses, uses, controls, sells,
transfers, or manufactures (or obtains alicense to do so) afirearm. 18 Pa.C.S. §6105(a).
Commonwealth v. Gomez, 2019 PA Super 359, 224 A.3d 1095, 1101 (Pa. Super. Ct.
2019), re-argument denied (Feb. 18, 2020), appeal denied, 142 MAL 2020, 2020 WL
3496372 (Pa. June 29, 2020).
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Here, the jury clearly had sufficient evidence to find Appellant guilty of the only
remaining charge of Persons Not to Possess a Firearm as charged in the Criminal
Information. During the trial, Appellant and the Commonwealth stipulated to the fact that
the Appellant was aperson prohibited from possessing or controlling afirearm because
of his prior convictions.
During the trial, Agent Jena testified that on the date of in incident he was
engaging in the execution of asearch warrant on the Appellant's residence and that he
spoke with the Appellant on the date of the incident. During that conversation, Appellant
advised Agent Jena that there was a firearm under the mattress in the bedroom.
Additionally, Agent Jena testified that while he was talking with the Appellant, other
agents were searching entirety of the residence to find contraband. All rooms of the
residence were to be searched for contraband, which included the Appellant's bedroom.
Agent Jena testified that afirearm was found by him under the mattress on top of the box
springs in an upstairs bedroom that also contained the photo identification of the
Appellant. The weapon was presented as evidence at trial.
Furthermore, the Appellant made a written statement during the time of the
execution of the search warrant that stated "The cop came to my house for acause Idon't
know, but they found a gun under the bed, which Itold them it was mine. "54 This
statement was presented to the jury at trial.
In order to convict adefendant for possession of afirearm by aprohibited person,
the Commonwealth must prove the defendant was previously convicted of a specific
14 Id. at 74.
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offense enumerated in section 6105. Commonwealth v. Jemison, 98 A.3d 1254, 1261
(Pa. 2014). Possession of afirearm is an essential element of the statute at issue in this
particular case. Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014).
The Appellant concedes that he had aprior conviction that prohibited him from
possession of afirearm. He argues that the Commonwealth failed to establish that he
possessed a firearm. However, there is testimony that the firearm was found in
Appellant's bedroom and that Appellant's identification card was also found in the same
bedroom. The Commonwealth may prove possession through constructive possession.
To establish constructive possession of contraband, the Commonwealth must show
that the Appellant had "conscious dominion" over the contraband, that is, "the power to
control the contraband and the intent to exercise that control." Commonwealth v.
Parker, 847 A.2d 745, 750 (Pa. Super. 2004). The "intent to maintain a conscious
dominion may be inferred from the totality of the circumstances," and "constructive
possession may be found in one for more actors where the item in issue is in an area of
joint control and equal access." Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa.
2011) (citations and brackets omitted).
The firearm was found under the mattress in the Appellant's bedroom where the
Appellant's Pennsylvania Identification Card was found. The Appellant directed Agent
Jena to the exact spot in abedroom that was in use by the occupants of that home where
the firearm was eventually found and then the Appellant wrote astatement admitting that
the firearm was owned by him.
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The Appellant argues that his written statement was not voluntary and therefore
was not an admission of his possession of the firearm. The jury heard evidence of the
Appellant's action in waiving his Miranda rights and in agreeing to talk to
Agent Jena. The jury determined that the statements of the Appellant made to Agent Jena
were voluntary and the jury was instructed with regards to the voluntariness of the
Appellant's statement. Viewed in the light most favorable to the Commonwealth, the
Commonwealth presented sufficient evidence that Appellant violated Persons Not to
Possess Firearms.
Weight of the Evidence
The Appellant next challenges the verdict as against the weight of the evidence.
The standard of review for aclaim that the verdict is against the weight of the evidence is
as follows:
A motion for anew trial based on a claim that the verdict is against the
weight of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of amere conflict in the testimony
or because the judge on the same facts would have arrived at a different
conclusion. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice. It has often been stated that anew trial should be awarded when the
jury's verdict is so contrary to the evidence as to shock one's sense of
justice and the award of anew trial is imperative so that right may be given
another opportunity to prevail.
Commonwealth v. Sebolka, 205 A.3d 329 (Pa. Super. 2019) (citations omitted). An
Appellant concedes that sufficient evidence supports the verdict in atrue challenge to the
weight of the evidence and instead questions which evidence the fact-finder should have
believed. Commonwealth v. Thompson, 105 A.3d 742, 758 (Pa. Super. 2014). For that
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reason, the trial court need not view the evidence in the light most favorable to the verdict
winner, and may instead use its discretion in concluding whether the verdict was against
the weight of the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa.
2000).
The issue of the constitutional admissibility of a defendant's statement to the
police is to be submitted to the jury for its resolution.... [T]he jury's determination of
involuntariness is to be based on the totality of the circumstances...." Commonwealth v.
Cox, 546 Pa. 515, 686 A.2d 1279, 1286-1287 (1996) (citations omitted). In this case, the
oral and written statements were given after the Appellant was advised of his Miranda
rights. He was not handcuffed when he gave the written statement. Counsel for the
Appellant elicited facts concerning the manner of entry into the Appellant's home, the
manner in which Appellant's family was secured, the number of law enforcement
officials that entered the home that day and, Agent Jena's reference to the possibility of
the Appellant's spouse as being apotential co-defendant for the possession of the firearm.
The jury was instructed on the requirement that they must find the statements of the
Appellant to be voluntary and counsel for Appellant forcibly argued the issue of
voluntariness during his closing argument. Appellant has not identified any facts that are
of greater weight than the facts established by the Commonwealth's evidence.
The direct and circumstantial evidence discussed above was not so ambiguous and
uncertain that the jury verdict somehow shocked the conscience of the trial court. Since
the Appellant has not demonstrated that the guilty verdict was against the weight of the
evidence, Appellant's allegations arc without merit.
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ALLEGED TRIAL ERRORS
Appellant's Objection to the Peremptory Strike of aJuror
Appellant also argues that the jury selection process in this case violated Batson v.
Kentucky, 476 U.S. 79 (S. Ct. 1986). The basis for that claim is that the Commonwealth
violated Batson by striking an African-American member of the venire and that the
Commonwealth should have been required to challenge the juror for cause when the basis
is inherent bias or inability to be impartial.
Appellant relies Commonwealth v. Jones, 477 Pa. 461 (Pa. Super. 1978) as a
basis for his argument regarding the procedural requirement to challenge for cause as
opposed to aperemptory challenge. Appellant states that according to Jones the proper
procedure to reject ajuror for inherent bias that would affect the ability of that juror to be
impartial is to challenge for Cause. Id. However, in Jones, the defendant was challenging
the court's refusal to grant defendant's challenge for cause and forcing him to use a
peremptory challenge in order to remove the juror, which resulted in the defendant using
all of his peremptory challenges before all jurors were empaneled. Id.In Commonwealth v. Jackson, 562 A2d 338 (Pa. Super. 1989), the Superior
Court defined the primary function of the peremptory challenge as "to allow parties to
strike prospective jurors who they have good reason to believe might be biased but who
are not so clearly and obviously partial that they could otherwise be excluded from the
panel." Id. (citations omitted). "[A] peremptory challenge need not be supported by the
same quantum of proof as would be necessary for achallenge for cause." Id. The reasons
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for the challenge need not rise to the level of a"for cause" challenge. Commonwealth v.
Jones, 668 A.2d 491, 519 n. 31 (Pa. 1995).
Furthermore, as recited in Jackson, Batson did not disturb the holding in Swain v.
Alabama, 380 U.S. 202 (S.Ct. 1965) that the government has a right to exercise its
challenges in any manner it chooses so long as their use does not serve racially
discriminatory ends. Jackson, 562 A.2d at 355. The Jackson Court further stated that it
did not question the statement that:
[t]he essential nature of the peremptory challenge is that it is one exercised
without areason stated, without inquiry, and without being subject to the
court's control. While challenges for cause permit rejection of jurors on a
narrowly specified, provable and legally cognizable basis of partiality, the
peremptory permits rejection for areal or imagined partiality that is less
easily designated or demonstrable. It is often exercised upon the "sudden
impressions and unaccountable prejudices we are apt to conceive upon the
bare looks and gestures of another," upon a juror's "habits and
associations," or upon the feeling that "the bare question of [a juror's]
indifference may sometimes provoke aresentment.
Id. (citing Swain, 380 U.S. at 220).
For the forgoing reasons, the Commonwealth's use of aperemptory challenge as
opposed to achallenge for cause is not procedurally improper and the Trial court must
now analyze the Appellant's objection to the Commonwealth's peremptory challenge by
applying the three part test set forth in Batson.
In Batson v. Kentucky, 476 U.S. 79 (S. Ct. 1986), the Supreme Court of the
United States held that aprosecutor's challenge to potential jurors solely on the basis of
race violates the Equal Protection Clause of the United States Constitution."
Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014) (citation omitted).
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Under Batson v. Kentucky, 476 U.S. 79 (S. Ct. 1986), the prosecutor's proffered
explanation must consist of "``legitimate reasons' for exercising the challenges." Batson,
476 U.S. at 98 n. 20. This is abroad category. "[T]he prosecutor's explanation need not
rise to alevel justifying exercise of achallenge for cause." Id. at 1723. "`` [T]here are any
number of bases' on which aprosecutor may reasonably believe that it is desirable to
strike ajuror who is not excusable for cause." Id. at 1724 n. 20 (citation omitted).
When adefendant makes aBatson challenge during jury selection:
First, the defendant must make a prima facie showing that the
circumstances give rise to an inference that the prosecutor stuck on or more
prospective jurors on account of race; second, if the prima facie showing is
made, the burden shifts to the prosecutor to articulate a race-neutral
explanation for striking the juror(s) at issue; and third, the trial court must
then make the ultimate determination of whether the defense has carried its
burden of proving purposeful discrimination.
Commonwealth v. Watkins, 108 A.3d 692, 708 (Pa. 2014) (citation omitted).
The first step in the Batson analysis is determining whether Appellant made "a
prima facie showing that the circumstances give rise to an inference that the prosecutor
struck one or more prospective jurors on account of race[.]" Watkins, 108 A.3d at 708
(citation omitted). The Supreme Court has explained:
To establish a prima facie case of purposeful discrimination[,] the
defendant must show that he is amember of acognizable racial group, that
the prosecutor exercised aperemptory challenge or challenges to remove
from the venire amember of the defendant's race; and that other relevant
circumstances combine to raise and inference that the prosecutor removed
the juror(s) for racial reasons.
Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (internal alterations, ellipsis,
footnote, and citation omitted).
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In the instant case, Appellant established a prima facie case of purposeful
discrimination. Appellant is African-American and the Commonwealth struck an
African-American prospective juror.
The second step in the Batson analysis is the determination of whether the
Commonwealth provides arace-neutral explanation for striking the prospective juror.
Watkins, 108 A.3d at 708 (citation omitted). The Supreme Court has explained as
follows:
The second prong of the Batson test, involving the prosecution's obligation
to come forward with arace-neutral explanation of the challenges once a
prima facie case is proven, does not demand an explanation that is
persuasive, or even plausible. Rather, the issue at that stage is the facial
validity of the prosecutor's explanation. Unless adiscriminatory intent is
inherent in the prosecutor's explanation, the reason offered will be deemed
race neutral.
Commonwealth v. Harris, 817 A.2d 1033, 1043 (Pa. 2002) (internal quotation marks
and citations omitted).
The Commonwealth proffered race-neutral explanations for striking the
prospective juror in question. The Commonwealth stated that it struck Juror No. 1-105
for two race-neutral reasons. First, the juror had indicated that someone very close to her
was a defendant in a double homicide case and that the results of that case left her
"unhappy with the decision" and essentially the justice system. Secondly, that the juror
believed that police officers will lie to get convictions. The Commonwealth stated that it
had abelief that the potential juror could not be impartial due the concerns that she
brought to the attention of the parties.
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The third step in aBatson analysis involves determining if the defense carried its
burden of proving purposeful discrimination. Watkins, 108 A.3d at 708 (citation
omitted). "It is at this stage that the persuasiveness of the facially-neutral explanation
proffered by the Commonwealth is relevant." Commonwealth v. Towles, 106 A.3d 591,
601 (Pa. 2014) (citation omitted). "The best evidence often will be the demeanor of the
prosecutor who exercises the challenge." Commonwealth v. Williams, 980 A.2d 510,
531 (Pa. 2009).
After such arecord is established, the trial court is to consider the totality of the
circumstances to determine whether challenges were used to exclude venire persons on
account of race or gender. Commonwealth v. Spence, 627 A.2d 1176, 1182-1183 (Pa.
1993).
In Commonwealth v. Hardcastle, 546 A.2d 1101, 1104 (Pa. 1988), the
Pennsylvania Supreme Court held that Appellant did not make out aprima facie showing
of improper use of peremptory challenges when the Commonwealth sought to
peremptorily challenge twelve (12) of fourteen (14) minority potential jurors. The reasons
for the strikes of three of the potential jurors were due to family members being victims
or defendants of crimes. Id, at 1105. Another potential juror testified that she would not
follow the judge's instructions, but then was rehabilitated through questioning. Id. These
were all acceptable race-neutral reasons for peremptory strikes.
In Commonwealth v. Bond, 652 A.2d 308, 313 (Pa. 1995), the Supreme Court of
Pennsylvania held that the race-neutral reasons presented by the Commonwealth were
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acceptable when the reason stated was that the potential jurors had family members who
had been arrested and charged with crimes.
In Commonwealth v. Towles, 106 A.3d 591, 600 (Pa. 2014), the Pennsylvania
Supreme Court accepted the Commonwealth's race-neutral explanation that apotential
juror indicated they were less likely to believe the testimony of a police officer as
sufficient.
In the instant case, this court acknowledges Appellant's efforts to rehabilitate the
potential juror during voir dire. The potential juror expressed what appeared to be adeep
seeded concern about police tactics and her general view that police would resort to lying
or other improper conduct to get aconviction. The Trial court was made aware that the
Commonwealth's case was based almost entirely on the testimony of alaw enforcement
official. The trial court carefully scrutinized the reasons given by the Commonwealth in
exercising the peremptory challenge for the potential juror while at the same time
observing the demeanor of the Commonwealth attorney during his proffer of aracially-
neutral reason for the peremptory strike. The trial court then concluded that the
Commonwealth's race neutral explanation was rooted in its belief that, even after the
counsel for the Appellant may have rehabilitated the potential juror such that amotion to
strike for cause was not a viable action, the potential juror had a distrust for police
officers that stemmed from her admitted belief that police officers lie and/or manipulate
situations to get aconviction. The other race neutral reason that was found to be credible
was the potential juror's history of having aclose friend that was convicted of adouble
homicide crime through aprosecution that occurred in Beaver County and which led to
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that potential juror questioning the fairness of the trial system as it related to her friend.
The potential juror's statements were thought by the Commonwealth to impair her ability
to be impartial despite her outward answers to the contrary.
Appellant failed to make out acase of purposeful discrimination and the proper
course of action in this instance was to deny the Batson challenge.
Appellant's Cross-Examination of Agent Jena regarding "missing witnesses"
Appellant's sole complaint for this final assignment of error relates to the Trial court's
evidentiary ruling which sustained the objection to Appellant's effort to have Agent Jena
confirm that because the eight members of the SWAT team were not to be called as
witnesses by the Commonwealth, that the jurors were not going to know what the
testimony of the SWAT team members would be. That was aquestion that had already
been asked by counsel for the Appellant on another occasion and was not objected to by
the Commonwealth. Even counsel for the Appellant confirmed that fact when he said
during the argument for that objection that he was not going much further with the
inquiry that was the subject of the objection because "I think the points (sic) made. They
didn't bring these people." Notes of January 8, 2020 Trial Testimony —Page 132.
Just prior to that re-cross examination question to which the objection was lodged,
counsel for Appellant pressed Agent Jena, without objection, to concede that: (1) the
SWAT team members were not at trial to testify, (2) Agent Jena could not detail each
action taken by every SWAT team member, and (3) the SWAT team members could
have come to trial to describe their role in entering the home and securing the occupants.
The objectionable question which is the basis of this final assignment of error was further
391Page
preceded on cross examination by counsel for the Appellant where Agent Jena was asked
to concede that: (1) the SWAT team members, if they were called as witnesses by the
Commonwealth, could have testified to their own activities once they entered the home,
(2) that the SWAT team members were not, however, going to be called as witnesses to
provide that testimony, and (3) since the SWAT team members were not at the trial and
were not to be called as witnesses, "these ladies and gentlemen here [the jurors] they're
never going to hear from them right?" Notes of January 8, 2020 Trial Testimony —
page 122.
The Trial court is mindful that it was Agent Jena who spoke with the Appellant at
the kitchen table when the Appellant admitted that there was agun under his mattress.
Agent Jena then retrieved the gun from the place where the Appellant said the gun would
be located. Agent Jena then took the written admission/statement from the Appellant
which was read into the record. Agent Jena was the lead officer that day and his
testimony was based on his observations. At no time did the Appellant show or contend
that the SWAT team members were not available to be called as witnesses by the
Appellant. At no time did the Appellant show that the SWAT team members refused to
talk to counsel for Appellant prior to trial and at no time did the Appellant show that the
SWAT team members would not have been amenable to process if summoned by counsel
for the Appellant.
As our Supreme Court has directed,
the decision to admit or exclude evidence is committed to the trial court's
sound discretion and its evidentiary rulings will only be reversed upon a
showing that it abused that discretion. Such a finding may not be made
401Page
"merely because an appellate court might have reached a different
conclusion, but requires aresult of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous."
Commonwealth v. Sherwood, 603 Pa. 92, 112, 982 A.2d 483, 495 (2009).
The following general rule is well settled:
[W]hen apotential witness is available to only one of the parties to atrial,
and it appears this witness has special information material to the issue, and
this person's testimony would not be merely cumulative, then if such party
does not produce the testimony of this witness, the jury may draw an
inference it would have been unfavorable. (citations omitted).
Commonwealth v. Jones, 317 A.2d 233, 237 (Pa. 1974); Commonwealth v. Gibson,
369 A.2d 314 (Pa. Super. 1976); Commonwealth v. Whyatt, 340 A.2d 871 (Pa.
Super. 1975).
It is equally established that the prosecutor is not obliged to call all eye witnesses
to acrime, particularly where he believes after due investigation that awitness' testimony
may be unreliable, unimportant, irrelevant, or merely cumulative. Commonwealth v.
Smith, 324 A.2d 483 (Pa. Super. 1974); Commonwealth v. Paull, 378 A.2d 1006 (Pa.
Super. 1977). The calling of witnesses is within the discretion of the prosecution under
the general direction of the trial judge. Commonwealth v. Thurman, 76 A.2d 483 (Pa.
Super. 1950).
Here, the Trial court was justified in refusing to pen-
nit the Appellant to continue
to question Agent Jena with regards to SWAT team members that were at the scene on
the date in questions. By the time that the Commonwealth attorney finally objected to this
line of questioning, counsel for the Appellant had made that same point on anumber of
411 Page
occasions. Counsel conceded as much when he said that his point was already made.
Furthermore, the SWAT team members were equally available to both parties. All
of the SWAT team and the Drug Task Force members were available to the Appellant
through the subpoena process. The record also reflects that Appellant was also permitted
to address the jury during closing argument about these other officers and that they were
not called as witnesses by the Commonwealth.
The trial court sustained the objection of the Commonwealth when the
Commonwealth finally objected. By that time, the question to which the objection was
sustaind, phrased slightly differently, was already asked. Under these circumstances, the
objection was properly sustained.
CONCLUSION
For the reasons stated above, this Court respectfully submits that the allegations of
error in this case are without merit and therefore this Court's holding should be affirmed.
The Beaver County Clerk of Courts is hereby directed to file the record of these
proceedings with the Superior Court of Pennsylvania. An appropriate order shall follow.
2© SEP 21 PSI 2= 16
Re.p: tfully Submitted,
41
U
i-D
Ga D !• J.
421Page
IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA :
No. 557 of 2019
vs.
758 WDA 2020
DONTAE RAMONE PATRICK
Shahen, Mitchell P. SEPTEMBER 21, 2020
AND NOW, this 21 St day of September, 20209, it appearing that the Appellant has
filed aNotice of Appeal in the above-captioned case and it further appearing that the
accompanying Memorandum Opinion satisfies the requirements of Pa. R.A.P. 1925(a).
IT IS SO ORDERED that the Clerk of the Court, Criminal Division, transmit the record
in the above captioned case to the Superior Court forthwith.
N
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BY T RXi
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J)
C)
Mitchell P. ahee J --;-
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