Com. v. Akes, R. ( 2016 )

J-A05019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD L. AKES
Appellant No. 1121 EDA 2015
Appeal from the Judgment of Sentence December 19, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001777-2014
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED JULY 26, 2016
Ronald L. Akes appeals from the judgment of sentence imposed
December 19, 2014, in the Delaware County Court of Common Pleas. The
trial court sentenced Akes to an aggregate term of 72 to 144 months’
imprisonment, plus three years of probation, made final by the denial of
post-sentence motions on March 3, 2015. On November 7, 2014, a jury
convicted Akes of possession with intent to deliver, possession of drug
paraphernalia, and providing false identification to a police officer.1 On
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
See 35 P.S. §§ 780-113(a)(30) and (a)(32), and 18 Pa.C.S. § 4914(a),
respectively.
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appeal, Akes raises various suppression, evidentiary, and jury instruction
challenges. For the reasons set forth below, we affirm.
The trial court set forth the facts and procedural history as follows:
Officer Brian Jefferson is a patrolman with the Darby
Borough Police Department and has been so employed for two
and a half years. Within that time, Officer Jefferson has
conducted over 1,000 traffic stops. On the evening of February
12, 2014, at approximately 8:30 p.m., Officer Jefferson was on
routine patrol in the area of Main Street and MacDade Boulevard
in Darby Borough, Delaware County. Officer Jefferson was in full
uniform and patrolling in a marked police vehicle.
Officer Jefferson observed a minivan traveling northbound
on MacDade Boulevard. Officer Jefferson witnessed the van
change from the left turn lane into the straight lane without a
turn signal, cutting off another vehicle. Officer Jefferson turned
on his lights and stopped the vehicle within the 200 block of
MacDade Boulevard, approximately a block down from where he
witnessed the violation. At this point, Officer Jefferson had his
overhead lights, and a spotlight on, as well as takedown lights,
which are two white lights that better illuminate the vehicle for
officer safety. He could see that there were three occupants in
the vehicle.
Officer Jefferson approached the vehicle and spoke with
the driver, herein [Akes].1 Although some people act nervously
when pulled over, [Akes] was nervous beyond the threshold of
the “normal nervousness” Officer Jefferson typically sees.
[Akes’] hands were trembling violently and he was sweating
despite it being snowy out. Officer Jefferson advised [Akes] why
he stopped and asked for his license, registration, and insurance.
As [Akes] was reaching into his glove box, a light came on within
the glove box, and Officer Jefferson could see an orange pill
container with no label containing multiple white pills.
1
The other occupants in the vehicle were identified as
Bernard Debose and Andre Brand.
Officer Jefferson asked [Akes] to hand him the unlabeled
pill bottle; however, [Akes] handed him two other pill bottles
from the glove box, one orange and another white that were not
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in Officer Jefferson’s view. The orange pill bottle was prescribed
to an Erica Simmons for oxycodone, quantity of 120. The white
pill bottle was also prescribed to Erica Simmons for amoxicillin in
the quantity of 30. [Akes] gave Off[ic]er Jefferson a prescription
that he took out from the center console and stated that he
picked the pills up from Wal-Mart that evening. Officer Jefferson
once again asked for the pill bottle he originally saw and [Akes]
handed over the unlabeled orange pill bottle.2, 3
2
At the station, officers located a pill bottle[] prescribed
to Andre Brand in Mr. Debose’s shoe. Andre Brand had a
sole pill in his possession.
3
The pills were later submitted to the Pennsylvania State
Police Bureau of Forensic Services, Lima Regional
Laboratory and were confirmed to be oxycodone, a
schedule II narcotic.
When Officer Jefferson told [Akes] he was the subject of
an official investigation and asked for his name, [Akes] replied
“Ronald Premier” and gave an address in Maryland but a zip
code in New Jersey. Officer Jefferson went back to his vehicle
and tried to confirm [Akes’] identity; however, it yielded no
result, which mean[t] he d[id] not have [an] ID in the state or
he lied.
Officer Jefferson went back to speak to [Akes] and advised
him that he was under arrest for drugs and for lying about his
name. When asked if there was anything in the vehicle that
Officer Jefferson should know about, [Akes] said, “no, you can
check it.” In the rear, right side passenger seat, Officer
Jefferson located a black notebook that contained “tally marks as
if it were a drug ledger.” Officer Jefferson also found three
Pennsylvania ID’s and insurance information for Erica Simmons,
Valerie Sadler, and Lorraine Fielding. Officer Jefferson also took
[Akes]’s cell phone that he was holding as well as $113 dollars
that he had on his person. After the stop, Officer Jefferson
placed all of the evidence into the evidence locker.
[Akes] was arrested and charged with Possession with
Intent to Deliver, Possession of a Controlled Substance,
Possession of Drug Paraphernalia, and False Identification to Law
Enforcement.
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…
On July 2, 2014, [Akes] filed a motion to suppress as well
as a motion for severance. Th[e trial c]ourt heard argument on
the motion for severance and denied it because the issues raised
by counsel could have been adequately addressed by cautionary
instructions to the jury at the time of trial. In addition, prior to
trial, both Bernard Debose and Andre Brand entered guilty pleas,
leaving only [Akes] left to stand trial, thereby effectively
reaching the very outcome sought by [Akes].
With regard to the suppression motion, th[e trial c]ourt
had to reschedule the motion two separate times because
counsel for [Akes] was not fully prepared to proceed on the
scheduled days. On October 1, 2014, counsel had mistakenly
not subpoenaed the owner of the vehicle, Mr. Quran H. Lockett,
to appear at the hearing. Counsel asked for a continuance to
subpoena Mr. Lockett. This Court granted the continuance and
rescheduled the suppression hearing for October 24, 2014.
On October 24, 2014, [Akes] attempted to call Mr. Lockett
to establish standing; however, counsel for [Akes] did not advise
Mr Lockett prior to the hearing that he had the right to obtain
the advice of counsel. Th[e trial c]ourt had to continue the
suppression hearing until October 31, 2014, so that the witness
could obtain counsel if he desired.
On October 31, 2014, Mr. Lockett opted not to testify, and,
as such [Akes] could not establish standing.[2] Therefore, th[e
trial c]ourt properly denied the motion.
On November 5, 2014, th[e trial c]ourt addressed [Akes’]
Motion to Preclude Evidence and the Commonwealth’s Notice of
Intention to Introduce Evidence of Other Crimes, Wrongs, or
Acts Under [Pa.R.E.] 404(b). Th[e trial c]ourt granted the
majority of [Akes’] motion with the exception of eleven (11) text
messages. Th[e trial c]ourt granted the Commonwealth[’]s
[Rule] 404(b) motion allowing text message numbers 2371,
2374, 2375, 2380, and 2381. A jury was then selected;
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2
As will be later discussed, we note that it was scrivener’s error to state
that Akes could not establish standing. See Footnote 6, infra.
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however, due to clerical error, the jury was dismissed and a new
jury was selected on November 6, 2014.
At trial, the Commonwealth presented the testimony of
Officer Jefferson, who testified to the facts mentioned above.
The Commonwealth then presented Detective Corey
Cooper who is employed with the Borough of Darby Police
Department and has been so employed for the past two years.
Prior to being a detective, he was a patrolman in Darby Borough
as well as Darby Township. In his capacity as a detective,
Detective Cooper has executed at least fifty search warrants on
cellular devices. Detective Cooper prepared and executed a
search warrant for [Akes’] Samsung Note 3 that Officer Jefferson
seized at the time of [Akes’] arrest. Following the standard
procedure for extracting data from a cellular device, Detective
Cooper was able to retrieve the contents of the phone and
download it onto a compact disc.
As a result from the search, Detective Cooper observed
several text messages, the following were outgoing messages
that [Akes] sent on the day he was arrested:
Outgoing message #2463 sent on February 12, 2014, @
2:16 p.m.: “nobody called for no p’s.”
Outgoing message #2464 sent on February 12, 2014, @
2:17 p.m.: “blues on deck.”
Outgoing message #2466 sent on February 12, 2014, @
2:19 p.m.: “Remember I need all the money to be right.
Did you sell the four?”
Outgoing message #2496 sent on February 12, 2014, @
8:47 p.m.: “The police just pulled me over. I told them
my name is Ronald Premier Lockett.”
Detective Cooper also observed the following text message
conversation between [Akes] and an individual named Quran
which occurred on February 7, 2014 between 12:24 p.m.,
through 5:10 p.m.:
Outgoing message #2371: “Yo I just found out we’re
going out tomorrow. They want to do it today but I don’t
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have time to put anything together if you got a young girl
like 25 for some zans.”
Incoming message #2372: “Yea, I got a girl that’s 25.”
Outgoing message #2373: “ask her if she got insurance
and Id that will be for some zans.”
Outgoing message #2374: “And if she can be ready early
tomorrow.”
Incoming message #2375: “All right.”
Incoming message #2380: “The Joan I got, she want to
know too much.”
Outgoing message #2381: “That’s up to you.[] You have
to decide. She only going to get z’s, maybe some 512 or
the cheap percs. You gotta figure out what you’re going to
make and pay the people that grab for you. I only pay 25
for z and 50 for p unless they your people and then you
got to look out.”
In addition, the Commonwealth also presented testimony
from Lieutenant Michael Boudw[]in, who is currently employed
with the Delaware County Criminal Investigation Division,
Narcotics Unit and has been so employed for the last thirty
years. Lieutenant Boudwin was offered and accepted as an
expert in the field of illegal drugs, drug distribution, drug
investigations, and drug jargon. After viewing the evidence in
[Akes’] case, Lieutenant Boudwin determined the pills were
possessed with the intent to deliver. Lieutenant Boudwin
testified that the amount of pills, the notes in the notebook, and
the text message[s] were all indicative of selling and not
possessing for mere personal use. Contained within the
notebook, was a list of different medications and a list of doctors
from where they were getting the medications. Coupled with the
text in reference to finding a female to go to the doctor’s office,
Lieutenant Boudwin described the following situation: “They’re
basically just pill mills. We send undercovers in; we make buys
off them. Word gets out in the community, user community, so
when you see doctors written down, and by the text messages
they’re recruiting people that fit the profile to go into the doctors
to shop for the pills. You go in to get the pills, if you’re using an
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insurance card; it costs nothing except a $2 copay. You come
out with the zannies or Xanax or alprazolam is the legal name of
the medication, and the [P]erco[c]ets or the oxycodone, and you
come out and you sell them for a large profit margin.” In
reference to the text messages, Lieutenant Boudwin pointed out
the “p’s” means Percocet and “bls on deck” means Xanax and
that the rest of the text messages were all indicative of selling
drugs.
The defense presented testimony from [Akes]. [Akes]
testified that on the evening of February 12, 2014, at
approximately 8:30 p.m., he was driving Andre Brand to get
groceries and Bernard Debose to go shopping. [Akes] testified
that he does this because it’s how he makes some extra money
and described it as being a taxi hack. When he was pulled over
by Officer Jefferson, [Akes] stated that he told Officer Jefferson
his name was Ronald Akes and that Officer Jefferson kept asking
him “what’s going on, where’s the weed?[” Akes] said his glove
compartment was broken at the time and that it lacked an
interior light and that Debose knocked two pill bottles out of the
glove box and that’s when Officer Jefferson asked to see them.
[Akes] testified that he borrowed the vehicle and that up until
that point, he had never seen the pill bottles before; it was a
shock to him that they were in the vehicle. In addition, [Akes]
testified that the name Valerie Sadler was wholly unfamiliar to
him. [Akes] also testified that he didn’t have any cell phones on
him, rather all the phones were in between the two seats.
After deliberating, [Akes] was found guilty of Possession
with Intent to Deliver: Oxycodone, Possession of Drug
Paraphernalia, and False Identification to Law Enforcement.10
10
The Commonwealth did not go forward on the lesser
included offense, Possession of a Controlled Substance and
counsel for [Akes] opted not to send it to the jury.
On December 19, 2014, th[e trial c]ourt sentenced [Akes]
as follows: Count 1: 72 months to 144 months in SCI with one
year consecutive state probation; Count 3: 1 year probation
consecutive to Count 1; Count 4: one year state probation
consecutive to Count 1 and Count 3.
On December 27, 2014, counsel for [Akes] filed a post-
sentence motion. Th[e trial c]ourt scheduled a hearing date of
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January 13, 2015; however, [Akes] was unavailable due to a
prison transfer. On February 3, 2015, th[e trial c]ourt held a
hearing and denied the motion via order on March 3, 2015,
which was served on March 4, 2015, and sent to counsel as
evidenced by the docket.
Trial Court Opinion, 5/27/2015, at 1-8 (record citations and some footnotes
omitted). This timely appeal followed.3
In Akes’ first argument, he asserts his constitutional rights were
violated because the trial court erred in (1) denying his motion to suppress
for lack of standing and (2) granting the Commonwealth’s motion to
introduce evidence of crimes, wrongs, and other acts under Pa.R.E. 404(b)
without allowing him to challenge the telephonic records authorship and
authentication. See Akes’ Brief at 11-12.
With respect to Akes’ standing contention, he states the court
incorrectly found he lacked standing to challenge the search and seizure and
that as a result, he was denied the opportunity to introduce evidence that he
had a privacy interest in the car. Id. at 14. He points to the following:
At [Akes’] preliminary hearing on October 31, 2014, the
vehicle [Akes] was arrested operating, owner, was Quran Akes-
Lockett was called to testify as to the car’s usage permissions.
Before testifying Mr. Lockett spoke with investigator Christopher
Lah[m]eman, about who had permission to utilize it. On
September 8, 2014, Mr. Lockett told Mr. Lah[m]eman, and
provided a signed statement, “I Quran Lockett of 1113 South
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3
On April 14, 2015, the trial court ordered Akes to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Akes
complied with the court’s directive, and filed a concise statement on May 4,
2015.
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53rd Street, I swear and affirm my father Ronald Akes and I
purchased the 2002 Oldsmobile Silhoutte [sic], and I placed the
vehicle in my name as a favor for him. The vehicle was in my
name but it was for his use.” [Akes] subpoenaed Mr. Lockett to
appear and testify before the trial court for proceedings on
October 24, 2014 and October 31, 2014.
Mr. Lockett on October 31, 2014, asserted his Fifth
Amendment privilege against self-incrimination and declined to
testify about the car’s ownership or who had permission to
operate it. Mr. Lockett was unavailable to testify at [Akes’] trial
as the court determined a privilege applied. Pa.R.E. 804(a)(1).
When [Akes] sought to have Mr. Lah[m]eman testify and
introduce signed documents by Mr. Lockett describing the
vehicle’s ownership and usage permissions, as a statement
against interest hearsay exception, the trial court denied [Akes’]
request and reasoned Mr. Lah[m]eman’s testimony would be
impermissible hearsay. The suppression court utilized Mr.
Lockett’s privilege assertion as the reason to demonstrate [Akes]
lacked standing and denied in its entirety [Akes’] motion.
Id. at 14-15. Akes complains the court erred in finding Lahmeman’s
testimony about Lockett’s statements was inadmissible hearsay. Id. at 15.
This conflated issue deals with a mix of suppression and evidentiary
issues. Accordingly, we begin with our standard of review of a denial of a
motion to suppress evidence, which is as follows:
An appellate court’s standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court’s
factual findings are supported by the record, the appellate court
is bound by those findings and may reverse only if the court’s
legal conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
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legal error, the suppression court’s legal conclusions are not
binding on the appeal court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to plenary
review.
Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa. Super. 2015)
(internal citation omitted), appeal denied, 135 A.3d 584 (Pa. 2016).
“The Fourth Amendment of the United States Constitution and Article
I, Section [8] of the Pennsylvania Constitution guarantee individuals freedom
from unreasonable searches and seizures.” Commonwealth v. El, 933
A.2d 657, 660 (Pa. Super. 2007), aff'd, 977 A.2d 1158 (Pa. 2009). “The
concept of standing in a criminal search and seizure context empowers a
defendant to assert a constitutional violation and thus seek to exclude or
suppress the government’s evidence pursuant to the exclusionary rules
under the Fourth Amendment of the United States Constitution or Article I,
Section 8 of the Pennsylvania Constitution.” Commonwealth v. Bostick,
958 A.2d 543, 550-551 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa.
2009). “A defendant moving to suppress evidence has the preliminary
burden of establishing standing and a legitimate expectation of privacy.”
Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa. Super. 2011).
Moreover,
[t]he traditional formulation for standing requires a defendant to
demonstrate one of the following personal interests: (1) his
presence on the premise at the time of the search and seizure;
(2) a possessory interest in the evidence improperly seized; (3)
that the offense charged includes as an essential element of the
prosecution’s case, the element of possession at the time of the
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contested search and seizure; or (4) a proprietary or possessory
interest in the searched premises.
Bostick, 958 A.2d at 551 (internal citation omitted). “[G]enerally under
Pennsylvania law, a defendant charged with a possessory offense has
automatic standing to challenge a search.” Maldonado, 14 A.3d at 910.
A defendant must separately establish a legitimate expectation
of privacy in the area searched or thing seized. Whether
defendant has a legitimate expectation of privacy is a component
of the merits analysis of the suppression motion. The
determination whether defendant has met this burden is made
upon evaluation of the evidence presented by the
Commonwealth and the defendant.
With more specific reference to an automobile search, this Court
has explained as follows: generally under Pennsylvania law, a
defendant charged with a possessory offense has automatic
standing to challenge a search. However, in order to prevail, the
defendant, as a preliminary matter, must show that he had a
privacy interest in the area searched.
Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en
banc).4
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4
“[U]nder both our state and the federal constitutions, a defendant cannot
prevail upon a suppression motion unless he demonstrates that the
challenged police conduct violated his own, personal privacy interests.”
Commonwealth v. Powell, 994 A.2d 1096, 1108 (Pa. Super. 2010)
(quotation omitted), appeal denied, 13 A.3d 477 (Pa. 2010). “The
constitutional legitimacy of an expectation of privacy is not dependent on the
subjective intent of the individual asserting the right but on whether the
expectation is reasonable in light of all of the surrounding circumstances.”
Commonwealth v. Caban, 60 A.3d 120, 126 (Pa. Super. 2012), appeal
denied, 79 A.3d 1097 (Pa. 2013).
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Here, it is uncontested that the officers possessed probable cause to
stop the van driven by Akes based on an observed motor vehicle violation. 5
Akes was subsequently charged with possessory offenses, and therefore,
had standing to challenge the search.6 See Maldonado, supra. As such,
we must determine whether Akes has established that he has a legitimate
expectation of privacy in the area searched or drugs seized. See Burton,
supra.As indicated above, Akes claims he was denied the opportunity to
introduce Lockett’s written statement to Investigator Lahmeman, which he
claims would have established that he had a privacy interest in the vehicle.
See Akes’ Brief at 14-15. Specifically, he argues the court erred in finding
the statements were inadmissible hearsay because (1) Lockett was
“unavailable” pursuant to Pa.R.E. 804(a)(1); (2) his statements were
“inculpatory and against his penal interests as purchasing a vehicle for an
uninsured driver without properly disclosing this fact could be construed as
insurance fraud among other crimes including conspiracy,” id. at 15; and (3)
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5
Akes does not challenge the initial stop or his consent to search the
vehicle.
6
We note that in its Rule 1925(a) opinion, the trial court erroneously stated
Akes could not establish standing for the vehicle he was driving. Trial Court
Opinion, 5/27/2015, at 10. However, it is clear this statement was a
scrivener’s error because in its October 31, 2014, order, the court denied
Akes’ motion to suppress based on the following: “[Akes] was unable to
establish a privacy interest in the vehicle that was searched by police.”
Order, 10/31/2014, at 1 (emphasis added).
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the statements were corroborated as Lockett made them “of his own free
will, while not subject to arrest or any other adverse consequence, to a
court-appointed investigator who explained to Mr. Lockett why he was being
interviewed during the course of his investigation[.]” Id. at 16.
Furthermore, Akes asserts Lockett’s statements were exculpatory to Akes’
case because it demonstrated Akes “had a legitimate privacy interest in the
vehicle[,]” and therefore, the drugs found in the glove compartment of the
car should have been suppressed. Id.
The admissibility of evidence is within the sound discretion of the
trial court, and this Court will not reverse a trial court’s decision
concerning admissibility of evidence absent an abuse of the trial
court's discretion. Commonwealth v. Flor, 606 Pa. 384, 998
A.2d 606, 623 (Pa. 2011). An abuse of discretion will not be
found based on a mere error of judgment, but rather exists
where the court has reached a conclusion which overrides or
misapplies the law, or where the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. Commonwealth v. Eichinger, 591 Pa. 1, 915
A.2d 1122, 1140 (Pa. 2007). To the extent that this case
presents a question of law, our standard of review is de novo,
and our scope is plenary.
Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014).
Here, a review of the record reveals that Akes did not raise a
“statement against interest” hearsay argument at the suppression hearing
when he attempted to introduce Lockett’s written statement to Investigator
Lahmeman. See N.T., 10/1/2014, at 9-10, 13. He also did not respond
when the Commonwealth objected to the statement as hearsay. Therefore,
to this extent, his argument is waived. See Pa.R.A.P. 302(a) (“Issues not
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raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Additionally, even if Akes had properly preserved this issue, he has not
demonstrated or explained that he has a legitimate expectation of privacy in
the area of the car that was searched or that the search was unreasonable.
Further, nothing in the record indicated the pill bottles were exclusively in
Akes’ possession or that that the other occupants of the vehicle did not have
common access to the bottles. Akes merely states that Lockett’s statements
were exculpatory because the statements established Akes had a legitimate
privacy interest in the vehicle. Given the fact that Akes does not challenge
his consent to the search, in which he voluntarily handed the pill bottles to
the officer, we would find Akes has failed to meet his burden and the court
did not err in denying his motion to suppress.
With regard to the seizure of Akes’ cell phone, Akes claims he “sought
to have any information obtained from the cellular phone suppressed
pursuant to his Commonwealth and federal Constitutional rights to be secure
in his person.” Akes’ Brief at 16. Akes contends, “By denying [his] motion
to suppress without allowing testimony regarding the cell phone on [his]
person the suppression court denied his right via Rule 581(H) to have the
Commonwealth bear the burden of establishing the challenged evidence was
not obtained in violation of [his] rights.” Id. at 17. Furthermore, he states:
[B]y denying [him] a suppression hearing regarding the phone
on his person, the suppression court failed to enter onto the
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record a statement of findings and conclusions of law as to
whether the evidence was obtained in violation of his rights, the
rules of criminal procedure, or any statute as required in Rule
581. Pa.R.C.P. 581(I).
Id.
Contrary to Akes’ claim, a review of the record reveals that in Akes’
various omnibus motions, he did not seek suppression of his cell phone.
See Omnibus Pre-Trial Motion, 6/27/2014, at ¶ 53; Omnibus Pre-Trial
Motion, 7/2/2014, at ¶ 62. Likewise, at the suppression hearings, he did not
attempt to elicit testimony about the seizure of the phone. See N.T.,
10/1/2014; N.T., 10/24/2014; and N.T. 10/31/2014. Moreover, at the
October 31, 2014, hearing, Akes’ counsel only indicated that he would be
filing a motion in limine to preclude the cell phone records, not to suppress
the evidence. See N.T., 10/31/2014, at 7-8. Accordingly, Akes has not
properly preserved this argument and we conclude that it is waived for
purposes of appellate review. See Pa.R.A.P. 302.
Akes also argues the court erred in granting the Commonwealth’s
motion to introduce evidence of crimes, wrongs, and other acts under
Pa.R.E. 404(b) without allowing him to challenge the telephonic records
authorship and authentication pursuant to Pa.R.E. 901. Akes’ Brief at 17.
Akes states the “Commonwealth’s only means of authenticating these
messages was to rely upon Officer Jefferson’s testimony” and “Officer
Jefferson never testified to witnessing [him] utilizing the cell phone, and
neither did Officer Cooper or Officer Boudwin.” Id. at 18. Additionally, he
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states no evidence was presented, which identified any person who sent or
received the messages. Id. at 20.
Our well-settled standard of review is as follows:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding
the admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010), quoting
Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010) (citations
omitted).
By way of background, the phone was seized from Akes’ person
incident to his arrest. The police officers then executed a search warrant for
the phone. The result of the search was numerous phone records, including
text messages. Prior to trial, the Commonwealth filed a notice of intent to
use Rule 404(b) evidence, which alleged that Akes sent text messages to an
individual named “Quran” describing his mode of operation or common plan
with respect to how he engaged in drug trafficking. On the first day of trial,
November 5, 2014, an off-the-record discussion was held regarding the
motion. Based on the discussion, the trial court then permitted Akes to
present evidence of the outgoing call log from the phone and allowed the
Commonwealth to present only five drug-related text messages obtained
from the phone. N.T., 11/5/2014, at 3-6. Defense counsel sought
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clarification that the five messages were the only ones to be admitted “for
mimic evidence regarding a comprehensive plan,” but did not object to their
admission. Id. at 5-6. Subsequently, defense counsel did object at the time
the first message was admitted into evidence. N.T., 11/6/2014, at 278.
Relying on the parties’ discussion that the text messages were being
introduced to show a comprehensive plan, the trial court found Akes waived
the issue because he “did not object to the messages being admitted for the
[Rule] 404(b) purpose[.]” Trial Court Opinion, 5/27/2015, at 11.
We note that even though it appears counsel for Akes did object at the
time the evidence was admitted, though it could be considered tardy
because he previously had acquiesced to the evidence being admitted for
purposes of a comprehensive plan, Akes never argued before the trial court
that the evidence was improperly authenticated. Accordingly, Akes again
has waived this part of his argument for failure to raise specific objection at
trial. See Commonwealth v. Baumhammers, 960 A.2d 59, 84 (Pa. 2008)
(stating “the absence of a specific contemporaneous objection renders the
appellant’s claim waived”), cert. denied, 558 U.S. 821 (2009). Therefore,
Akes’ first argument fails in its entirety.
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In Akes’ second issue, he contends the court erred when it prohibited
statements made by Brand and Debose, and Sadler7 to Officer Jefferson and
Investigator Lahmeman. Akes’ Brief at 20. Specifically, he asserts that
even though these witnesses made out-of-court statements, the statements
were made against their penal interests and therefore, should have been
admitted. Id.Keeping in mind our standard of review regarding the admissibility of
evidence, we note that Rule 804, which governs exceptions to the rule
against hearsay when a declarant is unavailable as a witness, provides, in
pertinent part:
(a) Criteria for Being Unavailable. A declarant is considered
to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the
declarant’s statement because the court rules that a privilege
applies;
(2) refuses to testify about the subject matter despite a court
order to do so;
…
(b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness:
…
(3) Statement Against Interest. A statement that:
____________________________________________
7
Brand and Debose, Akes’ co-defendants, were riding in the van at the time
of the incident at issue. Sadler’s ID and insurance information were found in
the car during the search.
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(A) a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when
made, it was so contrary to the declarant’s proprietary or
pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the
declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as
one that tends to expose the declarant to criminal liability.
Pa.R.E. 804(a)(1)-(2), b(3).
With respect to Brand and Debose, Akes argues their communications
to Officer Jefferson, which he penned in an affidavit of probable cause,
qualified as statements against their interest and should have been admitted
as permissible hearsay evidence because the statements exposed Brand and
Debose to criminal liability, both men were unavailable to testify, and the
surrounding circumstances indicated a strong indicia of veracity and
reliability. Akes’ Brief at 25-27.
In addressing this claim, the trial court found the following:
[Akes] asserts that th[e trial c]ourt erred when it did not
allow counsel to present to the jury exhibit D-1 (The Affidavit of
Probable Cause) because the document contained information
that was critical to his case.
On cross examination of Officer Johnson, counsel for
[Akes] marked the Affidavit of Probable Cause as D-1 and
questioned Officer Jefferson using the document. [N.T.,
11/6/2014 p. 220-221]. Testimony was elicited that prior to
removing the occupants from the vehicle, Officer Jefferson saw
Brand and Debose making furtive movements and that when
they were ordered out of the vehicle, Brand had a pill on him
and Debose had a pill bottle labeled Andre Brand. [N.T.
11/6/2014 p. 223]. The jury heard the evidence that [Akes] is
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alleging he was unable to elicit due to this Court’s ruling. In
addition, counsel for [Akes] insisted in eliciting testimony about
Debose and Brand’s guilty pleas even despite the
Commonwealth and th[e trial c]ourt advising at sidebar that this
could lead to the jurors finding guilt by association. [N.T.
11/6/2014 p. 230]. In fact, th[e trial c]ourt gave a cautionary
instruction to the jury after counsel elicited that both other
individuals in the vehicle pled guilty to the drugs found on their
person, that each case stands on its own merits and that [Akes]
is not to be found guilty by association. [N.T., 11/6/2014 p.
234] The jury heard all of the evidence that [Akes] was seeking
to elicit from D-1.
This Court does not permit documents to be published to
the jury by passing out copies during trial. If counsel wished to
utilize the document, he should have followed th[e trial c]ourt’s
instruction that documents presented during trial are to be
presented to the jury electronically, not by passing around
copies of copious amounts of paper. In fact, counsel was
advised that the evidence presenter could be retrieved from
legal audio visual located just down the hallway.12
12
In addition to verbally informing counsel for [Akes] of
the evidence presenter, th[e trial c]ourt’s rules for the
courtroom are published on the county webpage and, as
such, this was not an unfair surprise to [Akes].
Trial Court Opinion, 5/27/2015, at 18.
We agree with the trial court’s well-reasoned analysis. All of the
relevant and admissible evidence from the affidavit of probable that Akes
now seeks to be admitted was actually disclosed at trial via Officer
Jefferson’s testimony. Even Akes acknowledges that Officer Jefferson
specifically testified about Brand’s and Debose’s statements and
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involvement. See Akes’ Brief at 25.8 Furthermore, it is unclear from Akes’
argument what other evidence was improperly excluded.9 Moreover, a
review of the testimony reveals Akes never complained that the statements
made by Brand and Debose to Officer Jefferson were statements against
penal interest pursuant to Rule 804(b)(3). Accordingly, to the extent he has
not identified other improperly excluded evidence, we conclude this
challenge is waived.
Similar to his argument regarding Brand and Debose, Akes argues that
with respect to Sadler, her statements to Investigator Lahmeman qualified
as statements against her interest and should have been admitted as
permissible hearsay evidence because the statements exposed her to
criminal liability, she was unavailable to testify, and the surrounding
circumstances indicated a strong indicia of veracity and reliability. Akes’
____________________________________________
8
At trial, it appears counsel for Akes attempted to introduce evidence that
Brand and Debose were “sneaky” during processing at the police station,
and that more drugs were found on the two men. N.T., 11/6/2014, at 239-
240. Brand and Debose apparently made statements as to where these
other drugs came from. Id. The court precluded the evidence because
Brand’s and Debose’s convictions came in and because what happened at
the police station was irrelevant to what occurred in the van. Id. at 240.
Akes did not raise a claim that this evidence should have been admitted
pursuant to Rule 804 or for any other reason.
9
Akes never explicitly states in his brief what evidence the court improperly
refused to admit though it appears the two potential statements are as
follows: (1) Brand stated to the officer that he gave the pills to Debose; and
(2) Debose told the officer he bought the pills from Brand and that one of
the substances found was syrup. Akes’ Brief at 25.
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Brief at 27. Akes alleges Sadler told Investigator Lahmeman during a recess
at the October 24, 2014, proceeding that she had been in the car with only
Debose, she left her identification with him, and Akes did not know about
this. Id. He complains the court erred in preventing Investigator
Lahmeman from testifying about Sadler’s out-of-court statements. Id.
Moreover, he states the “veracity of Ms. Sadler’s statements to Mr.
Lah[m]eman is corroborated by Officer Jefferson’s Affidavit of Probable
Cause and the black spiral notebook both of which were admitted into
evidence at [Akes’] trial in addition to the narcotics recovered from Mr.
Debose by Officer Jefferson.” Id. at 28. Likewise, he asserts a reasonable
person in Sadler’s place would not have made this statement to Investigator
Lahmeman unless she believed it to be true because it exposed her to
criminal liability for conspiracy. Id.
In addressing this issue, the court found the following:
[Akes] alleges that this court abused its discretion when it
prohibited [Akes’] private investigator, Christopher Lahme[m]an
to testify to statements allegedly made to him by Valerie Sadler
when he served her with a subpoena for the defense. Counsel
sought to have Mr. Lahme[m]an testify that Ms. Sadler told him
“I left my Identification cards in the car when I was riding in it
alone with Debose.” [Akes] alleges prohibiting this testimony
created an “unbeatable bias” because Ms. Sadler’s statement
could have exculpated [Akes].
On November 6, 2014, after th[e trial c]ourt issued a
subpoena and sent the sheriff’s to find Mr. Brand, counsel for
[Akes] raised the issue of having Mr. Lahme[m]an testify. On
the record, th[e trial c]ourt asked for an offer of proof, counsel
responded:
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“I had raised two issues. This is why I had asked for
the material – this is why I asked for the warrant to be
served for Ms. Sadler because Ms. Sadler has made a
statement regarding the identification and how her driver’s
license and how her health insurance card ended up in the
vehicle Mr. Lonaman [sic] also was able to obtain this
statement from Ms. Sadler and this – and at this time –
and at the time that Ms. Sadler was in the vehicle only Mr.
Debose had been in the vehicle. And due to this, being a
circumstantial matter, these would be important
circumstances to be able to attack.”
[N.T., 11/6/2014 p. 145].
This Court properly prohibited the testimony as
inadmissible hearsay. Even assuming Ms. Sadler qualified under
the definition of an unavailable witness, her statement that she
left an ID card and insurance card in the vehicle with Mr. Debose
at some unknown time prior to the day of the stop and arrest is
completely irrelevant and in no way could have exculpated
[Akes] from the charges and furthermore, the statement is not
even supported by corroborating circumstance that clearly
indicate its trustworthiness.
Trial Court Opinion, 5/27/2015, at 16-17.
We agree with the trial court’s analysis. Most importantly, we note
that even if Sadler could be considered an unavailable witness, Akes does
not explain how Sadler’s statement was relevant to the stop and search at
issue or how it could have exculpated Akes from the charges. Indeed, the
pill bottles did not have Sadler’s name on them; it was only the insurance
information. N.T., 11/6/2014, at 8 (“The only thing of [Sadler’s] that’s in
the vehicle is her identification and a prescription that was not filled.”).
Accordingly, Akes’ second argument is meritless.
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In Akes’ third issue, he asserts the trial court erred and abused its
discretion when it granted the Commonwealth’s motion to charge the jury
regarding accomplice liability. Akes’ Brief at 29. Specifically, he argues the
two accomplice liability instructions should not have been given because
“there was not a conspiracy charge, the phone records were hearsay and not
properly authenticated, and because [Akes] never physically possessed
narcotics.” Id. at 30. Moreover, he states that the two instructions were
defective and prejudicial because neither instruction included the accomplice
liability exception pursuant to 18 Pa.C.S. § 306. Id. at 33. Section 306
provides, in pertinent part:
(f) Exceptions. — Unless otherwise provided by this title or by
the law defining the offense, a person is not an accomplice in an
offense committed by another person if:
…
(2) the offense is so defined that his conduct is inevitably
incident to its commission[.]
18 Pa.C.S. § 306(f)(2) (bold in original). Akes contends this “was a critical
missing factor as the jury could have determined that Mr. Debose’s and/or
Mr. Brand’s conduct in possessing narcotics could have qualified for this
exception.” Akes’ Brief at 33. Additionally, he states
[B]y disallowing [the] statements against Mr. Debose’s and Mr.
Brand’s interests … [Akes] had the best evidence to demonstrate
he was not an accomplice improperly barred. If [Akes] was
allowed to present evidence that Mr. Brand had given and/or
sold narcotics to Mr. Debose, the jury could have reasonably
concluded [Akes] was not acting as an accomplice, but was
- 24 -
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merely present when a crime occurred. Next, the
Commonwealth never proved in any manner [that Akes]
promoted, facilitated, asked, solicited, agreed, aided,
encouraged, or attempted to do any of the following acts. The
Commonwealth never introduced any testimony showing [Akes]
agreed to in anyway assist with the crimes of possession with
intent to distribute a controlled substance and possession of drug
paraphernalia.
Id. at 33-34. Akes reiterates his previous argument that the only evidence
the Commonwealth did present was the “unauthenticated hearsay testimony
regarding text messages originating from a phone in [Akes’] hands and an
expert’s opinion about the detailed hearsay.” Id. at 34.
Our standard of review for a challenge to a jury instruction is as
follows:
[W]hen evaluating the propriety of jury instructions, th[e trial
c]ourt will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.
We further note that, it is an unquestionable maxim of law in
this Commonwealth that a trial court has broad discretion in
phrasing its instructions, and may choose its own wording so
long as the law is clearly, adequately, and accurately presented
to the jury for its consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is there
reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)
(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014). “A trial court’s
denial of a request for a jury instruction is disturbed on appeal only if there
was an abuse of discretion or an error of law.” Commonwealth v.
Johnson, 107 A.3d 52, 89 (Pa. 2014), cert. denied, 136 S. Ct. 43 (U.S.
2015).
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Here, the trial court found the following:
[Akes] asserts that th[e trial c]ourt committed irreversible
error by allowing the standard accomplice instruction because “it
was prejudicial towards [Akes] because the Commonwealth had
never charged him as an accomplice, another person had equal
access to the illegal narcotics, [Akes] was charged with
possessing, and it was never shown [he] in any way aided,
abetted, encouraged, or assisted Brand, Debose, or anyone else
with illegal narcotics possession with intent to distribute.”
After a request from the Commonwealth, th[e trial c]ourt
decided that it would read the standard jury instruction
8.306(a)(1), accomplice liability. Counsel for [Akes] noted his
objection on the record prior to the instructions being given:
“we object to that, the accomplice charge given to the jury
because Mr. Akes here is not being charged with conspiracy as
well as Mr. Akes had no drugs found on him. So for those
reasons, we’re asking the instruction no[t] be given to the jury.”
[N.T., 11/7/2014 p.4].11
11
This Court instructed the jury the following: “There is a
way that one defendant can be proved liable for the
conduct of another person or persons. That is when the
defendant is an accomplice of the person who actually
commits the crime at issue. To be an accomplice, the
person does not have to agree to help someone else. The
person is an accomplice if he on his own to help the other
person commits a crime. More specifically, you may find
the defendant is an accomplice of another in this case if
the following two elements are proved beyond a
reasonable doubt. First, that the defendant had the intent
of promoting or facilitating the commission of the offense
of possession with the intent to deliver and secondly, the
defendant solicits, commands, encourages, or requests the
other person to commit it or aids, agrees to aid, or
attempts to aid the other person in planning or committing
it. Accomplice liability must be assessed separately for
each crime charged. If two or more crimes are committed
and the defendant before you [is] being charged an[d] as
an accomplice to each of these crimes, he may not be
found liable unless it is shown as each individual crime that
this Defendant had the intent of promoting the specific
crime and then solicited, commanded, encouraged,
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requested the other person to commit it or aided, agreed
to aid, or attempted to aid the other person in planning or
committing it. In other words, you must decide whether
the prosecution proved beyond a reasonable doubt that
this defendant was an accomplice to the first crime and to
the second crimes charged. It is important to understand
that a person is not an accomplice merely because he is
present when a crime is committed or knows that a crime
is being committed. And this, ladies and gentlemen,
applies to the possession with intent to deliver and
possession of drug paraphernalia. To be an accomplice,
the defendant must specifically intend to help bring about
the crime by assisting another in its commission. A person
who is an accomplice will be responsible for a crime if and
only if the person, before the other person commits the
crime, either stops his own efforts to promote or facilitate
the commission of the crime and either wholly apprised his
previous efforts of effectiveness in the commission of the
crime and gives timely warning to the law enforcement
authorities or otherwise makes a proper effort to prevent
the commission of the crime. [N.T., 11/7/2014 p. 88-90].
[Akes’] assertion that conspiracy was not charged and
therefore the accomplice liability instruction could not be given is
wholly inaccurate and disregards that the two are entirely
separate concepts.
In addition, [Akes] states that th[e trial c]ourt re-reading
the accomplice liability instruction to the jury when they had a
question was also prejudicial. During deliberations on November
7, 2014, at 1:23 p.m., the jury wrote a note that they were
struggling to reach an agreement on Count 1: PWID and needed
further instruction with regards to accomplice liability. This
Court again explained accomplice liability. [N.T., 11/7/2014
p.105-106]. Afterwards, in light of the explanation of
accomplice liability, th[e trial c]ourt asked counsel if there was
anything else they would like to elaborate on or explain, counsel
for [Akes] answered in the negative. Counsel for [Akes] did not
object to th[e trial c]ourt’s explanation of accomplice liability and
is therefore waived; however, even if the Court finds that it is
not, [Akes] was not prejudiced by th[e trial c]ourt clarifying
accomplice liability.
Trial Court Opinion, 5/27/2015, at 13-14.
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We again agree with the trial court’s determination. It merits mention
that Akes only objected to the instruction being given to the jury because he
was not charged with conspiracy and no drugs were found on him. N.T.,
11/7/2014, at 4. In his argument, Akes still appears to believe that because
he was not charged with conspiracy, the theory of accomplice liability cannot
be applied to his case. As the trial court points out, this is incorrect as the
two concepts are entirely separate and distinct. Moreover, Akes was on
notice from the time the complaint and information were filed that the
Commonwealth intended to show Akes acted in concert with Brand and
Debose.10
Additionally, counsel for Akes did not object to the content of the
accomplice liability instruction. The Pennsylvania Rules of Criminal
Procedure indicate that “[n]o portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate.” Pa.R.Crim.P. 647(C).
Furthermore, "the mere submission and subsequent denial of proposed
points for charge ... will not suffice to preserve an issue, absent a specific
objection or exception to the charge or the trial court’s ruling respecting the
points.” Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa. 2013)
(citation omitted); see also Pa.R.A.P. 302(b) (“Charge to jury. A general
____________________________________________
10
Indeed, the Commonwealth filed a notice of intent to try the three men
together pursuant to Pa.R.Crim.P. 582. See Information, 4/16/2014.
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exception to the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission complained
of.”). As such, any challenge to the specific language of the accomplice
liability jury instruction in the present matter has been waived. Accordingly,
Akes’ third argument fails.
In Akes’ penultimate issue, he claims:
[His] federal rights to confront his accusers, due process, and
equal protection of the laws were violated where the court
abused its discretion and impermissibly limited [his] cross
examination of arresting Officer Jefferson regarding statements
made to him by Mr. Brand and Mr. Debose[,] and where the trial
court prevented [him] from asking opinion based questions of
the Commonwealth’s witness[,] Officer Boudwin[,] who was
certified as an expert in controlled substance investigations,
illegal drug operations, and related terminology.
Akes’ Brief at 34-35 (some capitalization removed).
With respect to Officer Jefferson, Akes mainly reiterates his prior
argument that he was prohibited from questioning the officer about Brand
and Debose’s actions and statements after they were processed in the police
station. Id. at 36-37. Akes states the court’s determination that these
statements were inadmissible hearsay curtailed his right to confrontation
and violated his right to introduce statement against another’s interest. Id.
at 37. Moreover, he states the court prevented him from asking Officer
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Jefferson his opinion regarding individuals with Xanax on their person and
money in multiple pockets. Id. at 41.11
With regard to Officer Boudwin, who was testifying as an expert
witness regarding Akes’ narcotics operation, Akes complains the court
impermissibly limited his cross-examination. Id. at 40. Specifically, the
court erred in barring him from asking whether Akes was under investigation
prior to his participation in the case and if the officer found any person Akes
was alleged to have recruited. Akes states the court’s ruling preventing him
from demonstrating bias, lack of knowledge, and lack of corroboration. Id.
Akes argues he had a right to question Officer Boudwin about Brand’s and
Debose’s conduct. Id. at 42.
We are governed by the following:
The Confrontation Clause in the Sixth Amendment to the
United States Constitution provides that all criminal defendants
enjoy “the right to confront and cross-examine adverse
witnesses.” Commonwealth v. Laird, 605 Pa. 137, 988 A.2d
618, 630 (Pa. 2010). Moreover, “the exposure of a witness’
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.”
Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431,
89 L. Ed. 2d 674 (1986).
Although the right of cross-examination is a fundamental
right, it is not absolute. The trial court may place reasonable
limits on defense counsel’s cross-examination of a prosecution
witness “based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness'
____________________________________________
11
Akes was attempting to show that the officer found money from multiple
pockets of Debose but from only one pocket of Akes.
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safety, or interrogation that is repetitive or only marginally
relevant.” Van Arsdall, 475 U.S. at 679. “Generally speaking,
the Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L.
Ed. 2d 15 (1985).
Commonwealth v. Rosser, __ A.3d __, 2016 PA Super 51 [3258 EDA
2013] (Feb. 26, 2016) (en banc).
With respect to Officer Jefferson’s testimony, we note that as indicated
above, the jury heard both Brand and Debose made furtive movements
outside the car, both had pill bottles on their person, and both entered guilty
pleas in related matters. Therefore, any additional testimony would have
been repetitive or marginally relevant.
Moreover, as the trial court properly found in addressing his claim
regarding the questioning of Officer Jefferson about his opinion as to finding
Xanax on the person and money in multiple pockets:
First, counsel’s question was in relation to Debose and not
[Akes]. The objection from the Commonwealth was sustained
because the question was outside the scope of direct and solely
related to Debose. In addition, when counsel rephrased the
question and asked “it is a common practice for people who are
selling narcotics to keep money in different pockets” the
Commonwealth’s expert stated that it was common to keep
money in different pockets and included an entire explanation as
to why. The jury heard the evidence that [Akes] is alleging he
was unable to elicit.
Trial Court Opinion, 5/7/2015, at 20. Accordingly, based on the court’s
explanation, we find Akes’ argument is unavailing.
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With respect to Officer Boudwin’s testimony, we find Akes has failed to
include this issue in his Rule 1925(b) concise statement. 12 It is well-
established that in order “to preserve their claims for appellate review,
appellants must comply whenever the trial court orders them to file a
Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925.
Any issues not raised in a [Rule] 1925(b) statement will be deemed waived.”
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005), quoting
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). See also
Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Dozier, 99 A.3d 106, 110
(Pa. Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (appellant’s
issues waived for failure to present them in his concise statement).
Therefore, this issue is waived.
In Akes’ final argument, he asserts Officer Jefferson made remarks
about defense counsel being a public defender, which “was prejudicial and
created irreparable harm for which a sua sponte mistrial should have been
granted, and the trial court abused its discretion when it failed to grant one
as the substantial ends of justice could not be attained and manifest
necessity required such an order.” Akes’ Brief at 43.
____________________________________________
12
A review of the concise statement reveals that Akes only attacked the
limitation on his cross-examination of Officer Jefferson and not Officer
Boudwin. See Concise Statement of Errors Complained of on Appeal,
5/4/2015, at ¶¶ 45-48.
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A review of the record reveals the following. On direct examination,
Officer Jefferson was asked if he saw the person driving the vehicle at issue
in the courtroom. N.T., 11/6/2014, at 179. He replied in the affirmative as
to Akes and stated, “Sitting next to the public defender, white shirt, blue
tie.” Id. Counsel for Akes subsequently said, “And, Your Honor, could you
instruct the witness that I am not a public defendant; I’m actually a private
attorney[.]” Id. at 179-180. The court agreed and gave the following
instruction, “Yes. Ladies and gentlemen, strike that reference. [Prosecutor],
caution your witness they’re not to comment on the attorneys.” Id. at 180.
Counsel for Akes did not object or ask for a mistrial. Likewise, he did
not object after the trial court instructed the jury to strike the reference.13
Accordingly, for all practical purposes, Akes has waived this claim. See
Pa.R.A.P. 302.
Moreover, we are guided by the following:
It is within a trial judge’s discretion to declare a mistrial sua
sponte upon the showing of manifest necessity, and absent an
abuse of that discretion, we will not disturb his or her decision.
Commonwealth v. Leister, 712 A.2d 332, 334 (Pa. Super.
1998), (citing Commonwealth v. Gains, 383 Pa. Super. 208,
556 A.2d 870 (Pa. Super. 1989)); Pa.R.Crim.P. 1118(b)
(amended and renumbered as Rule 605, effective April 1, 2001).
Where there exists manifest necessity for a trial judge to declare
a mistrial sua sponte, neither the Fifth Amendment to the United
States Constitution, nor Article I, § 10 of the Pennsylvania
____________________________________________
13
We also note that while Akes raised the issue in his December 29, 2014,
post-sentence motion, he did not pursue the claim at the February 3, 2015,
hearing on the motion.
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Constitution will bar retrial. Leister, 712 A.2d at 335, (citing
Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352
A.2d 4 (Pa. 1976)).
In Commonwealth v. Diehl, 532 Pa. 214, 615 A.2d 690,
691 (Pa. 1992), our Supreme Court, when considering whether
manifest necessity for the trial court’s sua sponte declaration of
a mistrial existed, stated:
Since Justice Story’s 1824 opinion in United States
v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, it
has been well settled that the question whether under the
Double Jeopardy Clause there can be a new trial after a
mistrial has been declared without the defendant’s request
or consent depends on where there is a manifest necessity
for the mistrial, or the ends of public justice would
otherwise be defeated. Commonwealth v.
Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), citing
United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47
L. Ed. 2d 267 (1976). It is important to note that in
determining whether the circumstances surrounding the
declaration of a mistrial constitute manifest necessity, we
apply the standards established by both Pennsylvania and
federal decisions. Commonwealth v. Mitchell, 488 Pa.
75, 410 A.2d 1232 (1980).
Pennsylvania Rule of Criminal Procedure 1118(b)
provides that:
When an event prejudicial to the defendant
occurs during trial only the defendant may move for
a mistrial; the motion shall be made when the event
is disclosed. Otherwise, the trial judge may declare
a mistrial only for reasons of manifest necessity.
In accordance with the scope of our review, we must
take into consideration all the circumstances when passing
upon the propriety of a declaration of mistrial by the trial
court. The determination by a trial court to declare a
mistrial after jeopardy has attached is not one to be lightly
undertaken, since the defendant has a substantial interest
in having his fate determined by the jury first impaneled.
Commonwealth v. Stewart, 456 Pa. 447, 452, 317 A.2d
616, 619 (1974), citing United States v. Jorn, 400 U.S.
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470, 91 S.Ct. 547, 27 L. Ed. 2d 543 (1971). Additionally,
failure to consider if there are less drastic alternatives to a
mistrial creates doubt about the propriety of the exercise
of the trial judge’s discretion and is grounds for barring
retrial because it indicates that the court failed to properly
consider the defendant’s significant interest in whether or
not to take the case from the jury. Commonwealth, ex
rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976).
Finally, it is well established that any doubt relative to the
existence of manifest necessity should be resolved in favor
of the defendant. Bartolomucci, 468 Pa. at 347, 362 A.2d
234.
We do not apply a mechanical formula in determining
whether a trial court had a manifest need to declare a mistrial.
“Rather, ‘varying and often unique situations arise during the
course of a criminal trial . . . [and] the broad discretion reserved
to the trial judge in such circumstances has been consistently
reiterated . . . .’” Leister, 712 A.2d at 335, quoting Illinois v.
Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 1069, 35 L. Ed.
2d 425 (1973); Commonwealth v. Morris, 2001 PA Super 112,
773 A.2d 192, 194 (Pa. Super. 2001). The trial judge, who is
the foremost authority in his or her courtroom, is usually in the
best position to determine the necessity of recusal in any
individual case. Leister, 712 A.2d at 335, citing Wade v.
Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949) and
In Interest of Morrow, 400 Pa. Super. 339, 583 A.2d 816, 818
(Pa. Super. 1990); Morris, 773 A.2d at 194. This principle
assumes great weight when the issue involves how the
presentation of evidence or the conduct of parties affects a trial's
fact-finder. Leister, 712 A.2d at 335, citing Arizona v.
Washington, 434 U.S. 497, 514, 98 S. Ct. 824, 834-35, 54 L.
Ed. 2d 717 (1978) and Commonwealth v. Smith, 321 Pa.
Super. 51, 467 A.2d 888, 891 (Pa. Super. 1983); Morris, 773
A.2d at 194.
Commonwealth v. Kelly, 797 A.2d 925, 936-37 (Pa. Super. 2002).
Based on the record presented above, we find the circumstances do
not demonstrate a manifest necessity that would have compelled the court
to declare a mistrial sua sponte. The reference to defense counsel’s status
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was extremely brief, it was immediately corrected, and the court instructed
the jury to strike the comment. We find any prejudice suffered by Akes was
mitigated by the court’s instructions to the jury. See Commonwealth v.
Passarelli, 789 A.2d 708, 713 (Pa. Super. 2001) (“Furthermore, our law
presumes that juries follow the trial court’s instructions as to the applicable
law. Thus, any prejudicial effect from the prosecutor’s statement was cured
by the trial court’s general cautionary instruction to the jury.”) (citation
omitted), aff’d, 825 A.2d 628 (Pa. 2003). Accordingly, Akes’ final argument
fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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