Com. v. Stokes, R. ( 2019 )

J. S44037/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RANDY D. STOKES, : No. 360 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered February 1, 2019,
in the Court of Common Pleas of Warren County
Criminal Division at No. CP-62-CR-0000415-2017
BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 13, 2019
Randy D. Stokes appeals from the judgment of sentence entered on
February 1, 2019 by the Court of Common Pleas of Warren County Criminal
Division following his conviction of one count each of possession of a controlled
substance with intent to deliver and possession of a controlled substance and
three counts of criminal use of a communication facility.1 After careful review,
we affirm.
The trial court provided the following factual and procedural history:
In October 2017, the Warren County Drug Task Force
began covertly communicating with [appellant] over
social media and text messaging. Through these
messages, [appellant] agreed to deliver one gram of
methamphetamine to an undercover officer at a set
location in Warren, Pennsylvania. On October 20,
1 35 P.S. §§ 780-113(a)(30) and (16), and 18 Pa.C.S.A. § 7512(a),
respectively.
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2017, the Drug Task Force met [appellant] at the
location where he was taken into custody. At the time
of arrest, a clear plastic bag was found in the center
console of his vehicle which contained 2.9 grams of
white crystal-like substances, along with other items
consistent of drug paraphernalia. A subsequent field
test of the white substance yielded a positive result
for methamphetamine.
....
On January 15, 2019, a jury found [appellant] guilty
of possession with intent to deliver, possession of [a]
controlled substance, and three counts of criminal use
of [a] communication facility. The jury found
[appellant] not guilty of [one count] of criminal use of
[a] communication facility as well as possession of
drug paraphernalia. [The trial court] also found
[appellant] not guilty of operating a vehicle without
valid inspection. [Appellant] was sentenced on
February 1, 2019.[2] On March 1, 2019, [appellant]
filed a notice of appeal . . . .
Trial court opinion, 3/4/19 at 1-2 (extraneous capitalization omitted).
Appellant filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) with his timely notice of appeal. The trial court
filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Did the trial court abuse its discretion by overruling
defense counsel’s objection to the introduction of
evidence, specifically text messages exchanged
between [appellant] and an undercover police officer
on dates not noted in the criminal information as well
as messages that referenced [appellant’s] prior
criminal record?
2 The trial court imposed an aggregate sentence of 54-108 months’
imprisonment, with credit for time served.
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Appellant’s brief at 8.
Before we can address the merits of appellant’s appeal, we must first
determine whether the issue is properly before us. The Commonwealth
contends that appellant waived his issue on appeal because he failed to timely
object to the admission of text messages between appellant and an
undercover police officer. (Commonwealth’s brief at 1; see also trial court
opinion, 3/4/19 at 2-3.) Appellant argues that he properly preserved this
issue for appellate review when he raised an objection prior to
Detective Joseph Bees reading the text messages as part of his testimony.
The Pennsylvania Rules of Evidence state that in order to preserve a
claim of error involving the admission of evidence, a party must, on the record,
make a timely objection and state the specific ground for the objection.
Pa.R.E. 103(a)(1). See also Commonwealth v. Parker, 847 A.2d 745,
749-750 (Pa.Super. 2004) (“[I]t is well settled that failure to raise a
contemporaneous objection constitutes a waiver of [an evidentiary] claim.”).
Here, the record reflects that appellant failed to object to the admission
of the text messages at issue.
Q: Officer Bees, I am showing you what I have
marked as Commonwealth’s Exhibit 1; do you
recognize that?
A: Yes, these are the – this is the text
conversations with [appellant.]
Q: And did you print these out? Or, not print them,
but save them?
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A: I did.
[The Commonwealth:] Your Honor, at this time I
would ask that Commonwealth Exhibit 1 be entered
into evidence.
THE COURT: [Appellant’s counsel?]
[Appellant’s counsel:] No objection, Your Honor.
THE COURT: They’re admitted collectively as
Commonwealth Exhibit 1.
Notes of testimony, 1/15/19 at 34-35 (emphasis added).
The record further reflects Detective Bees began reading the text
messages aloud as they were simultaneously displayed for the jury on a
projector. (Id. at 36-71.) As Detective Bees read the text messages for the
jury, appellant raised objections pertaining to the dates of the text messages
and references to appellant’s criminal history contained within the text
messages. (Id. at 39, 44.)
We find that appellant failed to contemporaneously raise his objections.
Indeed, appellant raised his objections after the text messages had already
been admitted into evidence. Put another way, and as noted by the trial court,
at the time of appellant’s objections, the text messages were already part of
the record. (See trial court opinion, 3/4/19 at 3.) Accordingly, appellant’s
sole issue is waived on appeal.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2019
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