Com. v. Edwards, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT LEE EDWARDS
Appellant No. 3467 EDA 2015
Appeal from the Judgment of Sentence April 27, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006848-2014
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 15, 2016
Appellant, Robert Lee Edwards, appeals from the judgment of
sentence entered on April 27, 2015, following his bench trial convictions for
possession of a controlled substance, possession with intent to deliver a
controlled substance (PWID), and criminal use of a communication facility.1
Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On June 22, 2014, at approximately 1:00 a.m. in Quakertown,
Pennsylvania, police witnessed a white Cadillac parked in an unlit area of a
Pizza Hut parking lot after business hours. After waiting five minutes,
Corporal Joshua Mallery, who was in uniform and driving a marked police
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1
35 P.S. § 780-113(a)(16), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A.
§ 7512(a), respectively.
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car, parked to the side and behind the Cadillac. Based upon the time and
unlit location, he approached the driver’s side door with a flashlight.
Appellant, the only occupant of the vehicle, was sitting in the driver’s seat.
Corporal Mallery saw three cellular telephones in Appellant’s lap, one of
which was ringing incessantly. Corporal Mallory also saw loose cash,
including a $100.00 bill, in the partially opened, center console area of the
vehicle. Upon questioning, Appellant told Corporal Mallory he was waiting
for a friend by the name of Mike, but he did not know Mike’s last name and
could not say why he was waiting for Mike. Corporal Mallory noticed that
Appellant was shaking, breathing hard, and appeared nervous.
A backup officer arrived on the scene soon thereafter and parked 15 to
20 feet from Appellant’s car, but did not impede Appellant’s vehicle. When
the backup officer approached Appellant, he noticed an outgoing text
message on one of the cellular telephones in Appellant’s possession that
read, “Mike set me up.” Following a criminal record check of Appellant,
police discovered a previous drug arrest, but Appellant denied it. Corporal
Mallery summoned a canine (K9) unit to the scene and removed Appellant
from the vehicle. The K9 dog indicated controlled substances were located
in the driver’s seat area of the vehicle. Police impounded the vehicle and
obtained a search warrant for it. The search uncovered five cellular
telephones, $407.00 in cash, 1.10 grams of cocaine base, two empty vials,
and written chemical formulas for making crack cocaine. Corporal Mallery
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then obtained search warrants to obtain the records for all five recovered
cellular phones.
On July 9, 2014, the Commonwealth charged Appellant with the
aforementioned criminal offenses, as well as possession of drug
paraphernalia.2 On December 29, 2014, Appellant filed a pro se motion to
suppress evidence. Counsel for Appellant filed another motion to suppress
evidence on February 4, 2015. The trial court denied relief following a
suppression hearing on March 4, 2015. On April 27, 2015, the trial court
held a bench trial, incorporating the testimony from the suppression hearing
into the record. At the conclusion of trial, the trial court found Appellant
guilty of possession of a controlled substance, PWID, and criminal use of a
communication facility. The trial court sentenced Appellant to one to three
years of incarceration for PWID, with a consecutive two-year sentence of
probation for criminal use of a communication facility. Because possession
of a controlled substance merges with the offense of PWID, the trial court
imposed no further penalty on that charge. This timely appeal resulted.3
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2
35 P.S. § 790-113(a)(32).
3
On May 4, 2015, Appellant filed post-sentence motions. The trial court
held a hearing and denied relief on July 13, 2015. On October 5, 2015,
Appellant filed a counseled petition pursuant to the Post Conviction Relief Act
(PCRA), requesting the nunc pro tunc reinstatement of Appellant’s direct
appeal rights. By order entered on October 13, 2015, the trial court granted
the request. On November 12, 2015, Appellant filed a notice of appeal. On
November 14, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues for our review:
1. Did the lower court err when it denied [Appellant’s]
motion to suppress[] physical evidence seized following
an investigative detention that was unsupported by
reasonable suspicion that [Appellant] was engaged in
criminal activity?
2. Did the lower court err in finding there was sufficient
evidence to prove all the requisite elements of
possession with intent to deliver a controlled substance,
simple possession of a controlled substance and criminal
use of a communication facility when the evidence relied
upon [included] text messages of unknown authorship,
sent weeks before the incident in question, that were
extracted from a phone found in a vehicle that
[Appellant] operated but did not own?
Appellant’s Brief at 5.
In his first issue presented, Appellant contends the police lacked
reasonable suspicion to conduct an investigatory detention and, therefore,
the police illegally seized the items recovered from the vehicle he was
driving. Id. at 17. More specifically, Appellant “asserts that he was
subjected to an investigative detention and the trial court’s determination
that the initial interaction was a mere encounter is not supported by the
record.” Id. at 20. Appellant maintains that a reasonable person in his
circumstances would not have felt free to leave because: (1) he would have
had to “exert[] considerable effort to back the Cadillac between the two
_______________________
(Footnote Continued)
After requesting and receiving additional time to file his Rule 1925(b)
statement, Appellant complied on January 11, 2016. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on February 11, 2016.
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police vehicles that were purposely positioned in a manner to hinder[] his
departure[;] (2) both officers were in full uniform, Corporal Mallery shown a
flashlight into the car, and at least one officer was positioned next to the
driver’s side door at all times; (3) Corporal Mallery did not return his license
and registration even after he confirmed Appellant had no active warrants;
and (4) despite being parked in an area of known thefts and burglaries,
Corporal Mallery did not observe Appellant engage in criminal activity. Id.
at 21-24.
When reviewing the denial of a defendant's suppression motion, we
apply the following standard of review:
[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.
Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016)
(internal citation omitted). “Moreover, appellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.” Commonwealth v.
Stilo, 138 A.3d 33, 35–36 (Pa. Super. 2016) (internal citation omitted).
It is well-established that there are three categories of interaction
between citizens and police officers:
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The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention[,]” must
be supported by a reasonable suspicion; it subjects a
suspect to a stop and a period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by probable cause.
* * *
A police officer may detain an individual in order to conduct
an investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. This standard,
less stringent than probable cause, is commonly known as
reasonable suspicion. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give due weight to the specific
reasonable inferences the police officer is entitled to draw
from the facts in light of his experience. Also, the totality of
the circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal
conduct. Rather, even a combination of innocent facts,
when taken together, may warrant further investigation by
the police officer.
Id. at 36 (internal citations omitted).
Here, the trial court determined that the initial interaction was a mere
encounter based upon Corporal Mallery’s observation that Appellant parked
in a dark, unlit parking lot after store hours, in a high crime area, and did
not appear to be lost. See Trial Court Opinion, 2/11/2016, at 8. We agree.
When Corporal Mallery initially approached Appellant to request information,
the interaction did not require any level of suspicion. Corporal Mallery
positioned his marked police car near the right rear portion of Appellant’s
vehicle, but left room for the Cadillac to back out. N.T., 2/20/2015, at 22.
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Police did not put Appellant in a position where he was not free to leave.
Upon approach, Corporal Mallery observed, from a lawful vantage point,
three cell phones in Appellant’s lap and a “wad” of currency “in the center
console.” Id. at 22-24. Corporal Mallery made contact with Appellant and
asked what he was doing. Id. at 28. Appellant said he was waiting for a
friend, but could not offer the friend’s last name. Id. “One phone [] kept
ringing and ringing like somebody was trying to get ahold of [Appellant]
multiple times while [Corporal Mallery] was standing there interacting with
him.” Id. When asked about the currency, Appellant tried to change the
subject, was extremely nervous, and started breathing heavily. Id. at 29.
Corporal Mallery testified that based upon his training and experience, in
totality, the cellular phones, large and unorganized sums of cash, location of
the vehicle, and Appellant’s nervous and evasive behavior “indicated
possible drug activity[.]” Id. at 27-30. Thus, what began as a mere
encounter ripened into a reasonable suspicion that criminal activity was
afoot, which justified an investigative detention. Moreover, Corporal Mallery
formed the requisite reasonable suspicion before asking for vehicle
registration and before backup arrived. Hence, we reject Appellant’s
reliance on police actions occurring afterwards, i.e., the positioning of the
additional officer’s vehicle and failing to return Appellant’s license and
registration after confirming there were no active warrants. Accordingly,
the trial court properly denied suppression and Appellant’s first issue lacks
merit.
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Next, Appellant contends there was insufficient evidence to support his
convictions. Appellant’s Brief at 24. Appellant maintains that, “the primary
evidence relied upon were text messages of unknown authorship extracted
from a cell phone within a vehicle that [Appellant] drove on the night in
question but did not own.” Id. at 24-25. In sum, Appellant argues:
The trial court improperly relied upon the text message
evidence. The Commonwealth’s drug expert repeatedly
stated that his opinion that the controlled substance was
possessed with the intent to deliver was based almost
entirely on the text messages themselves. This is not a
case where the Commonwealth presented an overwhelming
amount of credible evidence regarding [Appellant’s]
involvement in drug transactions. The Commonwealth’s
case was built on evidence located throughout a vehicle that
[Appellant] operated, but did not own, and Detective
[David] Hank[s’] expert testimony, “based almost entirely”
on unauthenticated text message[s], many of which were
sent days and weeks before the incident in question.
The text messages were vital to proving each of the
charges. If the authorship of the drug related text
message[s] had been definitively linked to [Appellant],
those messages made it more probable that [Appellant]
constructively possessed the crack cocaine with the intent
to deliver and that he used the cell phone to facilitate a
drug transaction.
Since authorship was not established, the Commonwealth
failed to prove each of the elements of the crimes beyond a
reasonable doubt.
Id. at 29-30.
Our standard of review is well-established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
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is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
finder 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.
This standard is equally applicable to cases where the
evidence is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime
beyond a reasonable doubt. Although a conviction must be
based on more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical
certainty.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(internal citations and quotations omitted).
Initially, we note that Appellant argues the text messages were not
properly authenticated before being admitted into evidence. However,
Appellant failed to contemporaneously object at the time the text messages
were entered into evidence and has waived any challenge to their admission.
See Commonwealth v. Payne, 760 A.2d 400, 405 (Pa. Super. 2000)
(failure to object to the admission of subpoenas signed by defendant which
were not properly authenticated waived any claim that trial court erred in
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admitting such evidence); Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Additionally, Appellant fails to cite any law pertaining to authentication in his
appellate brief and this lack of legal development likewise results in waiver.
See Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (“We
have repeatedly held that failure to develop an argument with citation to,
and analysis of, relevant authority waives the issue on review.”); see also
Pa.R.A.P. 2119(a). Thus, we may not reach the question of whether the text
messages at issue were properly authenticated prior to their admission.
Moreover, although Appellant purports to contest the sufficiency of the
evidence presented, he in fact contends that the trial court placed too much
reliance on the text messages. Such a challenge goes to the weight of the
evidence presented. “To properly be preserved, a weight of the evidence
claim must be raised in a motion prior to sentencing, in an oral motion at
sentencing, or a post-sentence motion.” Antidormi, 84 A.3d at 758.
Appellant has not raised or preserved a weight of the evidence claim and we
may not weigh the evidence and substitute our judgment for the fact-finder.
Furthermore, “[i]n evaluating the sufficiency of the evidence, we do
not review a diminished record.” Commonwealth v. Gray, 867 A.2d 560,
567 (Pa. Super. 2005) (citation omitted). “Rather, the law is clear that we
are required to consider all evidence that was actually received, without
consideration as to the admissibility of that evidence or whether the trial
court's evidentiary rulings are correct.” Id.- 10 -
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We have reviewed the certified record, the parties’ briefs, the relevant
law, and the trial court’s opinion entered on February 11, 2016. We
conclude that the opinion meticulously, thoroughly, and accurately disposes
of Appellant’s sufficiency of the evidence claim on appeal. Therefore, we
affirm that issue on the basis of the trial court’s opinion and adopt it as our
own. Because we have adopted the trial court’s opinion, we direct the
parties to include the trial court’s opinion in all future filings relating to our
examination of the merits of this appeal, as expressed herein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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Circulated 10/31/2016 01:56 PM