Com. v. Jordan, W. ( 2021 )

J-S30011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
WILLIAM A. JORDAN
Appellant : No. 427 MDA 2020
Appeal from the Judgment of Sentence Entered July 24, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000077-2018
BEFORE: BENDER, P.J.E., MCCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 23, 2021
Appellant, William A. Jordan, appeals from the judgment of sentence of
an aggregate term of 66 to 144 months’ incarceration, imposed after he was
convicted by a jury of delivery of a controlled substance (35 P.S. § 780-
113(a)(30)), conspiracy to deliver a controlled substance (18 Pa.C.S. §
903(a)(1)), possession of a controlled substance with intent to deliver (35 P.S.
§ 780-113(a)(30)), possession of a controlled substance (35 P.S. § 780-
113(a)(16)), possession of drug paraphernalia (35 P.S. § 113(a)(32)), and
possession of marijuana (35 P.S. § 780-113(a)(31)). Appellant raises various
issues on appeal, including challenges to the sufficiency and weight of the
evidence; a claim that the court erred by admitting prior bad acts evidence
and denying his pretrial motion to suppress evidence; that his sentence is
* Retired Senior Judge assigned to the Superior Court.
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excessive; and that the court lacked jurisdiction over his conspiracy charge.
After careful review, we affirm.
The trial court set forth a detailed summary of the evidence presented
at Appellant’s trial in its Pa.R.A.P. 1925(a) opinion, which we adopt herein.
See Trial Court Opinion (TCO), 5/7/21, at 3-11. Briefly, Appellant's
convictions were premised on evidence that he sold cocaine to a “middleman,”
who moments thereafter sold the cocaine to a confidential informant (CI).
Police were conducting surveillance of the CI when the drug sale occurred,
and the CI was also outfitted with a recording device. When Appellant's
vehicle was stopped moments after the drug transaction, he was smoking
marijuana, and he had in his possession a small quantity of cocaine and a
portion of the pre-recorded “buy money” the police had given to the CI to
purchase the drugs.
Appellant was arrested and proceeded to a jury trial on May 1, 2018. At
the close thereof, he was convicted of the above-stated offenses. On July 24,
2018, the court sentenced Appellant to the aggregate term set forth supra.
He then filed a timely post-sentence motion. However, the court did not rule
on that motion within 120 days, and the clerk of courts did not issue an order
denying it by operation of law until January 31, 2020. Appellant filed his notice
of appeal within 30 days of the January 31, 2020 order.! Appellant also timely
1 Where a trial court fails to rule on a timely-filed post-sentence motion within
120 days, the clerk of courts is required to enter an order denying the motion
(Footnote Continued Next Page)
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complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On May 7, 2021, the trial court
filed its Rule 1925(a) opinion. Herein, Appellant states the following six issues
for our review, which we have reordered for ease of disposition:
1. Whether the trial court lacked subject matter jurisdiction over
the criminal conspiracy to deliver charge|[? |
2. Whether the evidence was insufficient to sustain a verdict of
guilty beyond a reasonable doubt on the charges of delivery of a
controlled substance, possession with intent to deliver and
criminal conspiracy to deliver a controlled substance?
3. Whether the trial court abused its discretion in failing to find
the verdict against the weight of the evidence as it relates to
delivery and possession with intent to deliver, and conspiracy to
deliver since the evidence related to same was so tenuous, vague
and uncertain that the ultimate verdict is such that it shocks one’s
[conscience]?
4. Whether the trial court abused its discretion in allowing
testimony and evidence regarding [Appellant’s] prior criminal
record to be admitted during the Commonwealth’s direct
examination on the basis that [Appellant] “opened the door” and
thereafter in failing to grant a mistrial?
by operation of law and serve that order on the parties. See Pa.R.Crim.P.
720(B)(3)(a), (c). A notice of appeal must then be filed within 30 days of the
entry of that order. See Pa.R.Crim.P. 720(A)(2)(b). Here, the clerk of courts
should have entered an order denying Appellant’s timely post-sentence
motion by operation of law on November 30, 2018, but it did not do so until
January 31, 2020. We have held that a breakdown in the operations of the
court occurs when the clerk fails to enter an order deeming post-sentence
motions denied by operation of law. See Commonwealth v. Patterson, 940
A.2d 493, 498-99 (Pa. Super. 2007) (citation omitted). Therefore, because
Appellant filed his notice of appeal within 30 days of the entry of the January
31, 2020 order denying his post-sentence motion by operation of law, we
decline to quash his appeal.
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5. Whether the trial court[’s] denial of Appellant’s motion to
suppress evidence recovered after an illegal stop was supported
by the record and free from legal error?
6. Whether the trial court abuse[d] its discretion by running each
of the individual drug related offenses in [the] high-end of the
standard range and running them consecutively thereby making
the aggregate sentence unnecessarily harsh and unreasonable
when neither his history nor his character warranted such a harsh
and excessive sentence and in otherwise failing to explain or
provide [an] adequate and/or proper basis for the excessive
sentence?
Appellant’s Brief at 3-4 (emphasis omitted).
In Appellant’s first issue, he argues that the trial court lacked
jurisdiction over the conspiracy to commit delivery charge, which was added
to the charges pending against Appellant on April 16, 2018, when the
Commonwealth filed an amended criminal information. Appellant’s jury trial
began on May 1, 2018. According to Appellant, the trial court lacked
jurisdiction over this newly-added charge because the Commonwealth had not
established, at a preliminary hearing, that it could make out a prima facie case
for this offense.
Appellant’s arguments are waived and/or moot. First, in Appellant’s
Rule 1925(b) statement, he did not raise any challenge to the court’s
permitting the Commonwealth to amend the criminal information to add the
conspiracy charge, and he cites no case law to support his assertion that this
claim constitutes a non-waivable challenge to the jurisdiction of the court. We
2 Appellant also claims that the court lacked jurisdiction over the conspiracy
charge because the Commonwealth failed to demonstrate that an overt act in
furtherance of the conspiracy occurred in Pennsylvania. We address this claim
infra. See infra, at 6 n.4.
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conclude that it does not. Namely, Rule of Criminal Procedure 564, which
governs the amendment of a criminal information, states that:
The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from
a different set of events and that the amended charges are not so
materially different from the original charge that the defendant
would be unfairly prejudiced. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in
the interests of justice.
Pa.R.Crim.P. 564. As Appellant recognizes, “[t]he purpose of Rule 564 is to
ensure that a defendant is fully apprised of the charges, and to avoid prejudice
by prohibiting the last minute addition of alleged criminal acts of which the
defendant is uninformed.” Appellant’s Brief at 52 (quoting Commonwealth
v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006) (citation omitted)). Thus,
it is clear Appellant’s challenge to the court’s permitting the Commonwealth
to amend the criminal information implicates due process and notice concerns,
not the jurisdiction of the court. Therefore, Appellant waived this claim by
failing to raise it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4) (vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).?
3 We note that the court informed Appellant in its Rule 1925(b) order that
“[a]ny issue not properly included in the Statement timely filed and served
shall be deemed waived.” Trial Court Order, 3/9/20, at 1 (single page); see
also Greater Erie Indus. Development Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (“[I]n determining
whether an appellant has waived his issues on appeal based on non-
compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers an
appellant’s obligation[.] ... [T]herefore, we look first to the language of that
order.”) (citations omitted).
J-S30011-21
We also deem moot Appellant’s claim that the trial court lacked
jurisdiction over his conspiracy charge because the Commonwealth did not
present a prima facie case for that offense at a preliminary hearing. It is well-
settled that “[o]nce [the] appellant has gone to trial and been found guilty of
the crime, any defect in the preliminary hearing is rendered immaterial.”
Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991). In other
words, “[a]n adjudication of guilt renders moot any allegation that the
Commonwealth failed to establish a prima facie case.” Commonwealth v.
Lee, 662 A.2d 645, 650 (Pa. 1995); see also Commonwealth v.
McCullough, 461 A.2d 1229, 1231 (Pa. 1983) (holding that the failure to
establish a prima facie case at a preliminary hearing is clearly immaterial
where at the trial the Commonwealth met its burden by proving the offense
beyond a reasonable doubt). Accordingly, Appellant’s first issue does not
warrant relief.
In reviewing Appellant’s remaining five issues, we have carefully
examined the briefs of the parties, the certified record, and the applicable law.
We also considered the detailed, 45-page opinion authored by the Honorable
Michael J. Barrasse of the Court of Common Pleas of Lackawanna County. We
conclude that Judge Barrasse adequately addresses the issues and arguments
Appellant raises herein, and properly concludes that they are meritless.+
4 Judge Barrasse did not explicitly discuss Appellant’s claim, raised for the first
time on appeal, that the trial court lacked jurisdiction over the conspiracy
(Footnote Continued Next Page)
J-S30011-21
Accordingly, we adopt Judge Barrasse’s well-reasoned decision as our own and
affirm Appellant’s judgment of sentence for the reasons set forth therein.®
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 11/23/2021
charge because there was no evidence that an overt act in furtherance of that
conspiracy occurred in Pennsylvania. However, Judge Barrasse did conclude,
for the reasons set forth in his assessment of Appellant’s challenge to the
sufficiency of the evidence, that “the overt act was [] Appellant’s delivery of
cocaine to Donald Miles at [] Miles’ residence for [] Miles to sell on the street,
including [to the CI].” TCO at 20. We agree. Accordingly, Appellant’s
jurisdictional claim is meritless.
> We note that Judge Barrasse addresses a claim that Appellant has
abandoned on appeal. See TCO at 33-35 (discussing Appellant’s claim that
the court erred by failing to grant Appellant’s request for a mistrial after
evidence was admitted regarding his prior criminal record). We do not adopt,
or assess the merits of, this portion of Judge Barrasse’s decision.
-J-
wiepea id Bhs td AM
COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS
PENNSYLVANIA. : OF LACKAWANNA COUNTY
v, ; CRIMINAL DIVISION
WILLIAM JORDAN
; 18CR77
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45 — Se OPINION
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Coes re “tse
es hig’ opitliigp is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
at ss a
Piipedure arid @ursuant to the request of the Superior Court. The Appellant’s grounds for appeal
988 A.2d 699, 670 (Pa. Super. 2009), appeal denied 4 A.3d
1054 (Pa. 2010); See also Commonwealth vy. Hewlett, 189 A.3d 1004, 1008 (Pa. Super.
2018)(the Commonwealth may sustain its burden with wholly circumstantial evidence, and
we defer to the finder of fact in matters of credibility).
Viewing the evidence in the light most favorable to the Commonwealth, the verdict winner, this
Court finds that there was sufficient evidence from which the jury could conclude that the
Appellant was guilty as to Count I, Count II, and Count TIL.
Delivery of a Controlled Substance, 35 P.S. § 780-113(a)(30) is defined in relevant part
as follows:
(T]he manufacture, delivery, or possession with intent to manufacture
or deliver, a controlled substance by a person not registered under
this act, or a practitioner not registered or licensed by the
appropriate State board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit controlled substance.
Id.
“[FJor a defendant to be liable as a principal for the delivery of a controlled substance there must
be evidence that he knowingly made an actual, constructive, or attempted transfer of
a controlled substance to another person without the legal authority to do so.” Commonwealth
y. Murphy, 844 A.2d 1228, 1234 (Pa. 2004). “A defendant actually transfers drugs whenever
he physically conveys drugs to another person.” Id. The term “delivery,” is defined as “the
actual, constructive, or attempted transfer from one person to another of a controlled substance,
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other drug, device or cosmetic whether or not there is an agency relationship.” 35 P.S. § 780-
102.
Here the evidence was sufficient to prove that the Appellant delivered between 2.5 and 5
grams of cocaine to Donald Miles in exchange for one hundred and ninety doltars (3190.00),
Anthony Jordan testified that he drove around for over an hour until Donald Miles’ cocaine
source could provide the cocaine to deliver to the confidential informant, Karl Racavitch, (N.T.
May 1, 2018 p.m. p. 40-41; May 2, 2018 p. 35-37). Mr. Jordan, Mr. Racavitch, and detectives
testified that a short period elapsed between the Appellant’s arrival and meeting with Donald
Miles and then return to the vehicle with the cocaine. (N.T. May 1, 2018 p. 15, 17-18; 67-70;
May 1, 2018 p.m. p. 43-44; May 2, 2018 p. 12-13, 16). Detective Zech testified that he
observed the Appellant’s green BMW arrive, and observed the Appellant and Donald Miles
walking together and entering Mr. Miles’ residence for a short period of time. (N.T. May 1,
2018 p. 67-70). After the transaction, the Appellant possessed one hundred and ninety dollars
($190.00) in serialized “buy money,” and Donald Miles, the middle- man as well as the
confidential informant, Katl Racavitch, each had the substance that a forensic scientist testified
was cocaine, weighing approximately nine and one-half (9 4) grams combined. Ig. at 79-80;
May 2, 2018 p. 62, 45-44, 49-50. Such evidence was sufficient to support the Count, I- Delivery
of a Controlied Substance conviction.
Criminal Conspiracy, 18 Pa. C.5. §903(a) is defined as follows:
(a) Definition of conspiracy. A person is guilty of conspiracy with another
person or persons to commit a crime if with the intent of promoting or facilitating
its commission he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or
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(2) agrees to aid such other person or persons in the planning or
, commission of such crime or of an attempt or solicitation to
commit such crime.
Id.
To sustain a conviction for criminal conspiracy:
[Tjhe Commonwealth must establish that the defendant (1)
entered into an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and
(3) an overt act was done in furtherance of the conspiracy.
Commonwealth y. Murphy, 795 A.2d 1025 (Pa, Super. 2002).
“This overt act need not be committed by the defendant; it need only be committed by a co-
conspirator.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000). Further,
circumstantial evidence may provide proof of the conspiracy. Commonwealth y. Davalos, 779
A.24 1190 (Pa. Super. 2001), “The conduct of the parties and the circumstances surrounding
such conduct may create a ‘web of evidence’ linking the accused to the alleged conspiracy
beyond a reasonable doubt.” Commonwealth v. Morton, 512 A.2d 1273, 1275 (Pa. Super.
1986). Additionally:
An agreement can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties,
knowledge of and participation in the crime, and the circumstances
and conduct of the partics surrounding the criminal episode.
These factors may coalesce to establish a conspiratorial agreement
beyond a reasonable doubt where one factor alone might fail.
Commonwealth vy. Greene, 702 A.2d 547, 554 (Pa. Super. 1997); Commonwealth v.
Lambert, 795 A.2d 1040, 1016 (Pa. Super. 2002); Commonwealth y. Bricker, 882
A.2d 1008, 1017 (Pa, Super. 2005).
The nature of the offenses is such that often there is no direct evidence of the defendant’s
criminal intent or the conspiratorial agreement. Commonwealth v. Murphy, 844 A.2d 1228,
1238 (Pa, 2004). Accordingly, the Commonwealth does not have to prove that there was an
15
express agreement to perform the criminal act; rather, a shared understanding that the crime
would be committed is sufficient. Commonyealth v. Nypayer, 69 A.3d 708 (Pa. Super. 2013)
There are four factors to be utilized in deciding if a conspiracy existed: 1) an association between
alleged conspirators; 2) knowledge of the commission of the crime; 3) presence at the scene of
the crime; and 4) in some situations, participation in the object of the conspiracy.
Commonwealth y. Feliciano, 67 A.3d 19, 25 (Pa. Super. 2013).
Instantly, the evidence established a close relationship between the Appellant and Donald
Miles. Anthony Jordan testified that the Appellant was Mr. Miles’ cocaine source and that the
Appellant previously visited Mr. Miles on at least six (6) occasions. (N.T. May 2, 2048 p. 27, |
34-35, 37). The Appellant had an association with Donald Miles. In fact, Mr. Jordan testified
that the Appellant was the only supplier at the time as he was the only person that came to visit at
‘the house. Additionally, Mz. Jordan did not testify that Mr. Miles ever possessed any cocaine at
their residence. It can be inferred that the common bond between Mr. Miles and the Appellant
was drug trafficking, Both Mr. Jordan and Mr. Racavitch testified that they drove around
waiting for Mr. Miles’ cocaine source to arrive, Mr. Jordan stated: “we went straight from his
house to down by my house [... ] and picked up Donald. He then proceeded to tell me where to
drive to, We drove through Scranton waiting for his plug to call, which was his dealer [... ]
| when I got the text that the dealer was coming at 6:30 [... ] Donald.was just pointing me in the
direction to go.” (N.T. May 1, 2018 p. 15, 48; May 1, 2018 p.m. p. 40-41). A jury could
reasonably infer that Donald Miles was the middle-man because he was operating off the
Appellant’s time and trying to make contact with the Appeliant.
The Appetlant controlled the transaction. If Donald Miles had the cocaine on his person
or obtained the cocaine inside the beer store as the Appellant argues, it would have been a
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speedier transaction as noted by the detectives. Moreover, Mr. Jordan testified to residing with
Mr. Miles and if the cocaine was located inside the residence, and/or Mr. Jordan’s vehicie, the
transaction would have been instantaneous. Although, the Appellant claims short periods of time
within which the detectives and police did not have visual contact, the Appellant’s claim is
refuted by the live recorded conversations and text messages that occurred, especially the
quantity of beer, which was located at Mr. Miles’ feet. N.T. May 1, 2018 p. 68-69; May 1,
2018 p.m. p. 11-16, Detective Zech explained: “In my training and experience making
undercover purchases and utilizing informants, if the drugs are in the car, it would have
happened a lot sooner because 1 know from experience they don’t want to drive around with a
carload of drugs for a long period of time. And they certainly weren’t doing any other
extracurricular activities [...] they were waiting for drugs.” N.T. May 1, 2018 p.m, p. 33-34.
The Commonwealth clearly presented sufficient evidence that Donald Miles did not have
the cocaine and had to meet his “plug” to obtain the cocaine. In short, Donald Miles was at the
whim of the Appellant as part of a drug distribution system where Donald Miles was merely a
seller, and the Appellant held a higher position as supplier receiving the profits. See
Commonwealth y, Melton, 240 A.3d 162 (Pa. Super. 2020)(finding that it was well within the
province of the jury to credit the testimony of the police officers explaining the change in
locations for the drug deal, and the fact that the co-defendant was known fo the police as a
middle man. Also within their province to conclude the defendant’s actions were those of
a dealer not those of a use); Commonwealth y. Gibson, 668 A.2d 552, 555 (Pa. Super.
1995)(holding appellant's presence with co-conspirator during entire criminal episode proved
conspiracy); Commonwealth v. Cooke, 492 A.2d 63, 68 (Pa. Super. 1985)(holding evidence
sufficient to sustain conviction of conspiracy where appellant was present at scene, strongly
i7
associated with co-conspirator and personally participated in crime); Commonwealth y. Ajlen,
625 A.2d 1266 (Pa. Super 1993)(holding that conduct was tantamount to active participation in
a conspiratorial agreement where defendant asked for money for his role in the transaction).
While waiting, detectives listened live to conversations between. Mr. Jordan and Mr.
Racavitch, referencing the cocaine source as “ATL,” and describing the specific characteristics
of the cocaine source, specifically that “ATL” drove a green BMW. (N,T. May 1, 2018 p. 67-
70). Detective Munley stated:
The information that we got initially didn’t
contain William Jordan. Again, we thought it was
going to be Anthony Jordan to Donald Miles. So that
was coming true, you know, what the CT initially said
was happening. Donald Miles was there. Anthony Jordan
was there. And through the radio — through the audio
transmitter of the body wire, we were hearing word of
another source. We were hearing word of ATL. We were
hearing word of a green BMW. So all of that information
wasn't from the CI, but that was being corroborated through
what I was hearing on the live andio transmitter.
N.T. May 2, 2018 p. 63.
Similarly, Detective Zech testified that while listening live and conducting surveillance,
he observed Mr. Miles exit the vehicle, and walk towards his house. Simultaneously, a green
BMW aitived and parked near Mr. Miles’ residence. The Appellant was not merely present at
the scetie of the crime, he played a key role in the conspiracy by supplying and delivering the
cocaine for sale to Donald Miles to sell to various individuals on the street. Detective Zech
testified that he observed the driver of the grcen BMW meet with Mr. Miles. A short period of
time elapsed, approximately ten (10) mintues and the driver of the green BMW is observed
exiting Mr. Miles house. Mr. Miles then returned to Mr, Jordan’s vehicle and provided a quantity
of cocaine to Mr. Racavitch. No other petsons were observed approaching Mr. Miles. Thus, the
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cocaine could have only come from the Appellant. N.T. May 1, 2018 p. 67-72. All participants
had knowledge of and participation in the crime, as the Appellant was the point of contact for
Donald Miles to obtain cocaine for his own use and sale to Karl Racavitch, and Anthony Jordan
testified to contacting Donald Miles who had to wait for his “plug,” on the date of the incident to
arrange the sale. Shortly after, the Appeliant’s arrival at Donald Miles’ residence, the transaction
with Mr. Racavitch is completed. See Commonwealth y, Beatty, 227 A.3d 1277, 1284 (Pa.
Super. 2020)(finding sufficient evidence of criminal conspiracy to deliver where the defendant
had an association with his co-defendants, in that they both knew cach ather for years and
defendant bought drugs from supplier before, was only supplier at the time and testimony
revealed defendant was contacted on the date of the incident in order to arrange for a sale);
Commonwealth v. Jones, 378 A.2d 914 (Pa. Super. 1977)(finding that in light of short periods
of time when officers did not have visual contact, the jury properly inferred that the defendant
possessed the heroin where the Commonwealth presented evidence of defendant's statements
combined with defendant’s nervous actions and other factors).
Thus, the coalescence of this circumstantial evidence sufficiently established a
conspiratorial agreement, The above-described conduct and short time within which the
Appellant arrives at Donald Miles’ residence and then Mr, Racavitch is provided the cocaine
constitutes sufficient cixcumstantial evidence of a conspiracy in which the Appellant and Donald
Miles were jointly involved in a cocaine dealing operation. Mr. Jordan testified to referring Karl
Racavitch to Donald Miles, who, waiting for the cue from the Appellant, then collected the
payment, retrieved the cocaine from the Appellant and then shared the payment with the
Appellant. It is clear the Appellant held an interest in the sale because he possessed a quantity of
the serialized “buy money.”
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The Commonwealth published text messages, and audio recordings of the same, therefore
it is a fair inference that the male driving a green BMW with the street name “ATL,” was Donald
Miles’ “plug,” meaning his dealer, and identified as the Appellant. Detective Zech recalled
reviewing text messages between Donald Miles and Anthony Jordan, in which Mr. Miles
reassures Mr. Jordan that “ATL is on his way to the crib [... ] so we are going to bounce in
five.” N.T. May 1, 2018 p. 89. This is an eminently reasonable inference given that the
Appellant proceeded to Mr. Miles’ residence at approximately 6:30 p.m. in a green BMW,
directly at a time when Mr. Miles exited Mr. Jordan’s vehicle, the purpose of which was to
obtain cocaine, Furthermore, the Appellant and Mr. Miles were observed leaving his residence
shortly after the Appellant arrived. Thereafter, a quantity of cocaine and serialized “buy money”
was recovered from Mr. Miles. Id. at 92. Importantly, serialized “buy money” was recovered
from the Appellant, which demonstrates that the Appeliant had an interest in the sale. Detective
Zech explained: “a middle man commonly takes or keeps a portion of the monies collected to
purchase drugs. That’s the cost of doing business with a middle man. If you want to use their
dealer, their source, you’re going to pay for it. They are going to keep a little bit.” N.T. May J,
2018 p. 85.
Finally, the overt act was the Appellant’s delivery of cocaine to Donald Miles at Donaid
Miles’ residence for Donald Miles to sell on the street, including Karl Racavitch. The Appetlant,
as a co-conspirator, is fully liable for all the cocaine that was recovered. By these facts, a jury
could reasonably find the Appellant guilty of criminal conspiracy to deliver cocaine beyond a '
reasonable doubt.
To sustain a conviction for Possession With Intent to Deliver, 35 P.S. § 780-113(a)(30),
“the Commonwealth must prove both the possession of the controlled substance and the intent to
|
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deliver the controlled substance.” Commonwealth vy, Roberts, 133 A.3d 759-767-68 (Pa.
Super. 2016)(quoting Commonwealth y. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008). Intent
to deliver, within context of offense of possession of controlled substance, may be inferred from
an examination of the facts and circumstances surrounding the case. Commonwealth y,
Griffin, 804 A.2d 1 (Pa. Super. 2002); Commonwealth v. Campbell, 614 A.2d 692 (Pa.
Super. 1992). The trier of fact may infer that the defendant intended to deliver a controlled
substance from an examination of the facts and circumstances surrounding the case.
Commonwealth v. Kirkland, 831 A.2d 607 (Pa. Super. 2003). Where the quantity of the
controlled substance is not dispositive as to the intent, the court may also look to other factors,
such as “the manner in which the controlled substance was packaged, the behavior of the
defendant, the presence of drug paraphernalia, and the sums of cash found in possession of the
defendant.” Commonwealth vy, Brockman, 167 A.3d 29, 39 (Pa. Super. 2017)(citing
Comonwealth v. Tasamy, 934 A.2d 1233, 1237-38 (Pa. 2007)
In the instant matter, Detective Zech testified that he seized a baggie of marijuana, one
baggie of powered cocaine, two cell phones and five hundred and eighty dollars ($580,00) of
currency containing one hundred and ninety dollars ($190.00) of serialized “buy money.” N.T.
May £, 2018 p. 73,77-80. At the time of the Appellant’s arrest, a combined total of nine and one
half (9 4%) grams of cacaine was recovered. The Appellant was arrested shortly after Donald
Miles delivered the cocaine to Karl Racavitch and the detectives recovered one hundred and
ninety dollars ($190.00) of serialized “buy money.” Id. at 79. Even though the Appellant did
not engage in the hand-to-hand transaction, he delivered the cocaine to Mr. Miles, and received
money for it. Additionally, Detective Zech stated: “through my training and experience with
doing drug work, normally a drug trafficker has a family phone and a business phone.” Id. at
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73,78; N.T. May 1, 2018 p.m. p. 25. All the foregoing factors: two cell phones, a large sum of
money commingled with serialized “buy money,” text messages, surveillance, and live audio
recordings as well as the forensic testimony regarding the weight of the cocaine, combined, is
sufficient evidence for the fact-finder to reasonably infer that Donald Miles sold cocaine for the
Appellant and that the Appellant possessed less than 2.5 grams of cocaine on his person with the
intent to deliver. See Commonwealth v, Bess, 789 A.2d 757, 761-62 (Pa. Super.
2002)(uphoiding the trial court's finding that the packaging of 2.2 grams of cocaine, along with
the recovery of a “large sum” of cash in the amount of $158, and the absence of paraphernalia
associated with the personal use of cocaine was sufficient to sustain a conviction of PWID);
Commonwealth v. Smagala, 557 A.2d 347 (Pa. Super. 1989)(where there is
direct evidence that the defendant was involved in the distribution of narcotics, such as proof
arising out of a controlled purchase by an undercover law enforcement officer or agent,
the possession of eyen a small amount of drugs can support the inference of an intent to deliver).
C. Whether the trial court abused its discretion in failing to find the verdict is against
the weight of the evidence as it relates to delivery and possession with intent to
deliver since the evidence related to same was so tenuous, vague, and uncertain that
the ultimate verdict is such that it shocks one’s conscious?
D. Whether the trial court abuse its discretion in failing to find the verdict is against
the weight of the evidence as it relates to conspiracy to deliver since the evidence as
it relates to conspiracy was so tenuous, vague, and uncertain that the verdict related
to same shocks one’s conscious?
The weight of the evidence is supported by the jury's verdict. The determination of
whether to grant a new trial because the verdict is against the weight of the evidence rests with
the discretion of the trial court and will not be disturbed unless the trial court has abused its
discretion. Commonwealth vy. Pronkoskie, 445 A.2d 1203, 1206 (Pa. 1982). A claim that the
evidence presented at trial was contradictory and unable to support the verdict requires the grant
22
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TCO yur
of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of
justice. Commonwealth v. Saksek, 522 A.2d 70, 72 (Pa. Super. 1987). Moreover, the weight
to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be
disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 290 A.2d
114, 117 (Pa. 1972); See also Commonwealth y, Hamilton, 546 A.2d 90, 95-96 (Ra. Super.
1988), allocator denied, 558 A.2d 531 (1989)(holding that the scope of review for a claim that a
verdict is against the weight of the evidence is very narrow, especially where issues of credibility
are concerned, it is not the function of the appellate court to substitute its judgments based on a
cold record for that of the trial court); Commonwealth v. Champney, 832 A.2d 402,408 (Pa.
2003)(the weight of the evidence is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of the witnesses [...] an appellate
court's role is not to consider the underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its
discretion in ruling on the weight claim); Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa.
Super. 2012)( “A jury decision to credit certain evidence and reject other testimony is
appropriate; therefore, the trial court did not abuse its discretion in concluding that its sense of
justice was not shocked by the verdict.”).
. Applying the above standards to the instant case, the Appellant’s guilty verdict as to
Count I, Count IL, and Count IZ, does not shock one’s sense of justice such that it is against the
| weight of the evidence. The record supports the jury’s finding of guilt. This Court incorporates
the factual analysis in issues A and B herein. In this case, the Commonwealth presented seven
(7) witnesses. At trial, the jury heard extensive and detailed testimony about an investigation
into the trafficking of cocaine involving a confidential informant, a runner, a middle-man and a
23
Ss
source cn December 13, 2017, namely Karl Racavitch’s contact is Anthony Jordan, and Anthony
Jordan’s contact is Donald Miles, and Donald Miles’ source is the Appellant. The confidential
informant, Karl Racavitch, and the runner, Anthony Jordan, consistently testified that they
artanged for the purchase of an “eight ball” of cocaine, priced at three hundred dollars ($300.00)
via text messages and a recorded phone call observed by detectives.
Mr. Racavitch testified that he contacted Mr. Jordan in the presence of Detective Zech
and Detective Muntey seeking an “eight ball” of cocaine. He related that detectives outfit him
with a covert audio recorder and serialized “buy money.” Thereafter, Mr. Jordan testified that he
contacted Donald Miles to obtain the cocaine, Mr. Jordan explained that he arranged to drive
Mr. Racavitch to Mr. Miles, wherein Mr. Jordan and Mr. Racaviich learn that they must wait for
Mr. Miles’ source to provide the cocaine.
Both Mr. Jordan and Mr. Racavitch testified to driving around and waiting approximately
one hour. While waiting, Mr. Racavitch and Mr. Jordan discuss identifying characteristics of the
cocaine soutce, notably that he drives a green BMW and is known as “ATL.” Mr. Jordan
testified that “ATL” had prior dealings with Mr. Miles and he frequented their residence.
Throughout the entirety of Mr. Jordan’s testimony, he identified the Appellant as “ATL,” and the
source of the cocaine. Subsequently, both Mr. Jordan and Mr. Racavitch testified that Mr.
Racavitch provided Mr. Miles with the serialized “buy money.” Next, the Appellant directed
Mr. Miles to exit the vehicle and meet him at the residence. Both Mr. Jordan and Mr. Racavitch
testified that after waifing over an hour, within ten (10) minutes of meeting the Appellant, Mr.
Miles returned to the vehicle and provided Mr. Racavitch with a quantity of cocaine.
The Commonwealth corroborates the statements and testimony of Mr. Jordan and Mr.
Racavitch by observing text messages, conducting surveillance and listening live to the
24
conversations occurring inside Mr. Jordan’s vehicle. The Commonwealth presented and
published to the jury relevant text messages and audio recordings, which likewise corroborated
the testimony of Mr. Jordan, who identified the Appellant as the cocaine source and Mr.
Racavitch, who is provided with 2.63 grams of cocaine by Mr. Miles when he returned to the
vehicle.
To that end, Detective Zech testified that he observed a green BMW, matching Mr.
Jordan's description and driven by the Appellant. In accordance with the text messages,
Detective Zech observed the Appellant meet Mr. Miles and enter Mr. Miles’ residence.
Moments later, Detective Zech observed Mr. Miles and the Appellant exit the residence, and Mr.
Miles return to Mr. Jordan’s vehicle. Inside Mr. Jordan's vehicle, Mr. Miles provided Mr.
Racavitch with the cocaine. Specifically, Detective Zech stated: “Once Donald got in that car, I
hear the cocaine transaction occur.” N.T. May 1, 2018 p. 72. Detective Zech further testified
that a search of the Appellant revealed one hundred and ninety dollars ($190.00) of serialized
“buy money” commingled into five hundred and eighty dollars ($580.00) as well as two cell
| phones and approximately one gram of cocaine.
The Commonwealth also produced scientific evidence through the testimony and report
of Lauren Force, who testified that the weight of the cocaine sold fo Mr. Racavitch was 2.63
grams and that the weight of the cocaine on the Appellant’s person was 1.06 grams. The total
‘| combined weight of the cocaine recovered from both vehicles was approximately nine and one
half (9 ‘A) grams. The defense did not present any witnesses.
Nevertheless, the Appeliant challenges the weight of the evidence by arguing that the
Commonwealth did not present any “indicators” establishing the Appellant as a drug dealer,
citing no evidence of a large amount of drugs, no recorded phone calls or text messages, and
25
only one (1) gram of cocaine for personal use, Instead, this Court found that the Commonwealth
presented other facts indicative of the Appellant’s drug dealing. Anthony Jordan identified the
Appellant as “ATL,” and as Donald Miles’ cocaine source. Anthony Jordan, Karl Racavitch, and
Donald Miles awaited the Appellant’s arrival for over one hour to obtain the cocaine. Upon
meeting with the Appellant, Donald Miles momentarily returned with the cocaine and provided a
quantity to Mr. Racavitch. Detective Zech and Detective Munley testified that the Appellant
possessed the larger amount of serialized “buy money,” whereas Donald Miles possessed the
smaller amount, indicative of a supplier versus a middle man. Both the Appellant and Mr, Miles
profited from the transaction, The jury was free to weigh the testimony, as well as accept or
reject the rationale provided by the Commonwealth for why the Appellant was not in possession
of certain items. Simply put, the verdict is not so contrary to the evidence as to shock the
conscience. See Commonwealth vy. Roberts, 133 A.3d 759, 770 (Pa. Super, 2016).
The Appellant argues that the cocaine was inside Mr. Jordan’s vehicle prior to Mr.
Racavitch entering, and that the testimony of Mr. Jordan and Mr. Racavitch is unreliable.
To the extent that the Appellant is challenging the reliability and truthfulness of Mr.
Jordan and Mr, Racavitch, this Court will not substitute its judgement for the finder of fact, who
is free to believe all, part, or none of the evidence, and assess the credibility of the witnesses,
See Commonwealth y. DeJesus, 860 A.2d 102, 107-108 (Pa. 2004)(holding that questions
concerning inconsistent testimony trigger the credibility of the witnesses). Mr. Jordan identified
the Appellant as “ATL” and identified the Appellant as the source of the cocaine. Mr. Jordan
and Mr. Racavitch testified to driving around for over an hour until Mr. Miles’ cocaine source
atrived in a green BMW, as described earlier, Both testified that Mr. Miles exited the vehicle,
met with the Appellant and returned to the vehicle with a quantity of cocaine. Despite the prior
26
wait, the transaction occurred within ten (10) minutes. In fact, the covert audio recordings
presented by the Commonwealth eliminated Anthony Jordan as a potential cocaine source. The
drug transaction occurs after over an hour of driving around and waiting. The jury was free to
weigh the testimony, as well as accept or reject the rationale provided by the Commonwealth as
to why Anthony Jordan could not have been the source of the cocaine, meaning the drug
transaction would have occurred sooner or instantaneously if Anthony Jordan possessed the
cocaine inside his vehicle. Similarly, the jury was free to determine the weight and inferences to
be drawn from Anthony Jordan and Karl Racavitch’s pending criminal charges ot pending parole
violations, as well as their desire to receive any leniency in exchange for their testimony against
the Appellant. See Commonwealth y. Thomas, 240 A.3d 921 (Pa. Super. 2020).
Clearly, the jury found the testimony of the Commonweaith’s witnesses consistent, credible
and reliable enough to return a verdict of guilty on all charged offenses. As such, the jury’s
decision to credit the witnesses’ respective statements does not render the verdict contrary to the
evidence presented. A review of the record does not indicate that the verdict is “so contrary to
the evidence as to shock one’s sense of justice.” Accordingly, this Court concludes that the
Appellant’s claims are without merit and this Court did not abuse its discretion.
E. Whether the trial court erred, as a matter of Jaw, and/or abused its discretion in
allowing testimony and evidence regarding the Appellant’s prior criminal record to
be admitted during the trial on the basis that the Appellant “opened the door” to
such evidence being allowed and/or at all since such evidence was overly prejudicial
to the Appellant?
The admission of evidence is solely within the discretion of the trial court, and a trial
court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An
abuse of discretion will not be found based on a mere error of judgment, but rather occurs where
the court has reached a conclusion that overrides or misapplies the law, or where the judgment
21
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa, 2015). Generally, all relevant evidence
is admissible, and evidence is relevant if it has “any tendency to make a fact more or less
probable then it would be without the evidence.” Pa. R. E. 401-402. However, the court may
exclude relevant evidence if its probative value is outweighed by a danger of “unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa. R. I, 403.
Pa.R.E. 404(b)(1) provides:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the
_ person acted in accordance with the character.
Under certain limited exceptions, evidence of crimes other than the crime for which the
defendant is on trial is admissible. For example, a litigant opens the door to inadmissible
evidence by presenting proof that creates a false impression refuted by the otherwise prohibited
evidence. Commonwealth y, Puksar, 951 A.2d 267 (Pa. 2008). The Pennsylvania Superior
Court has stated:
One who induces a trial court to let down the bars to a field of
inquiry that is not competent or relevant to the issues cannot
complain if his adversary is also allowed to avail himself of that
opening. The phrase ‘opening the door'’...by cross examination
involves a waiver. [f defendant delves into what would be
objectionable testimony on the part of the Commonwealth,
then the Commonwealth can probe further into the
objectionable azea.
Commonwealth v. Stakley, 365 A.2d 1298, 1299-1300 (Pa. Super, 1976); See also
Commonwealth vy, Patosky, 656 A.2d 499, 504 (Pa. Super. 1995)(holding when defendant
delves into what would have been objectionable testimony on Commonwealth's part,
Commonwealth can probe into objectionable area); Commonwealth v. Bey, 439 A.2d 1175,
28
1178 (Pa. Super. 1982)(holding where defendant opens door to what otherwise might be
objectionable testimony, Commonwealth may probe further to determine veracity of statement).
The Appellant argues that the Commonwealth should not have been permitted to present
Mauri Keliy, the Lackawanna County Clerk of Judicial Records to testify as to whether the
Appellant had any prior convictions. The Appellant also argues that the Commonwealth should
not have been allowed to elicit testimony through Detective Zech regarding the Appeilant’s bail
amount or good character.
However, in the opening statement, defense counsel raised the inference that the
Appellant is not a drug dealer, utilizing this theory to distinguish the Appellant from other co-
defendants, to distinguish the Appellant from characteristics known about the cocaine source and
discussed on the audio recordings. Additionally, in the opening statement defense counsel also
raised the inference that Detective Zech requested “high” bail amounts for the Appellant and his
co-defendant and unsecured bail for Anthony Jordan in exchange for favorable testimony. N.T.
May 1, 2018 opening statement p. 16. Following that theory, during the Commonwealth’s case
in-chief, defense counsel cross-examined Karl Racavitch raising the inference that the Appeliant
did not have a prior felony drag conviction and therefore could not have been the cocaine source
alluded to in the audio recordings. N.T. May 1, 2018 p. 46.
Later, as a fair response to these inferences, the Commonwealth asked Detective Zech if
the inference that the Appellant was not a drug dealer was accurate. Detective Zech testified: “I
would find that to be inaccurate.” Yd. at 91. Also, as a fair response, the Commonwealth asked
Detective Zech to explain the inference regarding the Appellant’s high bail and Anthony
Jordan’s unsecured bail. Detective Zech testified: “Criminal history shows that he’s a two-time
convicted felon for drug trafficking here in Lackawanna County.” Id, at 90, Further, defense
counsel’s crass-examination of Detective Zech explicitly introduced the Appellant’s prior
29 ©
criminal conviction. Defense counsel questioned: “And in regards to the record that you talked
about, are you aware that my client’s first conviction for a drug offense was in 1991?” N.Y.
May 1, 2018 p.m. p. 4.
As such, the Appellant is asserting to the jury, albeit implicitly, that he was not the
cocaine source as described in the audio recordings, that he was not a drug dealer, and does not
possess those prior conviction characteristics, rather his co-defendants were drug dealers, and he
is not like his co-defendants, and that his co-defendant was treated differently by detectives and
received unsecured bail in exchange for favorable testimony. Notwithstanding, the Appellant
does not want the jury to know that he does possess those characteristics, that he does have prior
felony drug convictions, and that bail was set high for that reason. Accordingly, this Court found
that the Appellant cannot have it both ways. N.T. May 2, 2018 eral argument p. 5-6. Nor does
it make a difference whose witness is on the stand when defense counsel opens the door.
Moreover, defense counsel engaged in a line of questioning regarding the Appeliant’s
characteristics that went above and beyond, through no provocation from the Commonwealth
and continued this theory/theme throughout the trial. In fact, defense counsel inquired why
detectives requested a higher bail for the Appellant in comparison to his co-defendant as motive
to lie.
Allowing the Commonwealth to introduce evidence of the Appellant’s prior criminal
convictions would have answered those inquires. It is apparent from the record that admission of
the Appellant’s prior criminal convictions is probative of issues other than propensity to commit
crimes. Detective Zech’s testimony articulated reasons for bail and discredited defense counsel’s
theory that Anthony Jordan received favors in exchange for his testimony. Detective Zech’s
testimony also rebutted the Appellant’s claims in his opening statement of innocent association
30
and that he is not a drug dealer. Mauri Kelly’s testimony discredited defense counsel’s
inferences in his opening statement and on cross-examination of Karl Racavitch that the
Appellant does not possess the characteristics as described on the audio recordings.
To that end, this Court found Mauri Kelly’s testimony admissible for the purpose of
rebutting the Appellant's claim that he is not the cocaine source because he did not have felony
drug convictions, See Commonwealth y. Hernandez, 862 A.2d 647, 651 (Pa. Super.
2004)(where defendant asserted he did not sell drugs, Commonwealth was permitted to question
defendant about prior convictions that contradicted this assertion); Commonwealth y. Trignani,
483 A.2d 862, 869 (Pa, Super. 1984)(where Appellant claimed he never shot anyone,
Commonwealth was allowed to introduce his prior conviction for aggravated robbery where
Appellant shot a store clerk during the robbery); See also Commonwealth y. Lewis, 885 A.2d
51 (Pa. Super. 2005)(holding that Defendant's counsel's questions on cross-examination,
regarding detective's previous drug transactions with co-defendant, opened the door for the
‘Commonwealth on redirect to ask detective about the involvement of other persons in previous
drug transactions with co-defendant).
This Court permitted the Commonwealth to present the testimony of Mauri Kelly and
elicit testimony through Detective Zech because the Appellant opened the door for the
Commonwealth to contradict the assertion that the Appellant was not a drug dealer, and that
Appellant did not possess prior felony drug convictions. By distinguishing the descriptions of
the cocaine source in denying 4 prior criminal history, the Appellant offered evidence of his good
character. For example, the line of cross-examination questioning utilized by the Appellant as to
Karl Racavitch constituted evidence given by the Appellant tending to prove his own good
|| character or reputation. N.T. May 1, 2018 p. 46. Defense counsel questioned:
31
soepen
All right, Karl, some of the other things you talked about in those
recordings when you're talking with Anthony, he’s describing to
you the person that he anticipates to be the source of the drugs,
correct? [... ] And he talks about specifically the actually the two of
you talk about the guy having potentially carrying a lot of money
on him cotrect? [...] And the indication is that this source or
this person you expect typically drives around with a lot of money,
correct? [...]And you talk about the fact that the source that
you're expecting always carries firearms on him[... ] and are you
aware that my client wasn’t arrested with any guns or anything on him?
{...] you guys are discussing the fact that this source allegedly has
a federal felony drug conviction for which he did almost 20 years in
prison? [... ] Are you aware that my client doesn’t have a federal
conviction for which he did 20 years in prison?”
Id. 43,45-46.
Similarly, in the opening statement, defense counsel stated:
But Anthony Jordan was not treated like the other people
who were charged. There were three people who were
charged, okay, Anthony Jordan, Donald Miles, my client
William Jordan, The evidence that you'll hear is that when
they went in to get arraigned, Mr. Jordan and Mr. Miles are
given high amounts of bail. Mr. [Anthony] Jordan is released
on unsecured bail and just let go, not put in prison, not
incarcerated. None of that [...] he’s already beginning to
get favors in exchange for what he’s going to do for them
[...]So what the evidence is going to show is, Donald
Miles is a drug dealer [... ] It’s going to show that
Anthony Jordan is a drug dealer [ .. . ] It’s going to
show that the CI himself is a drug dealer [.. . ] What
its not going to show is that my client is a drug dealer.
The Commonwealth is going to interject some suspicion
and ask you to assume that he is.
N.T. May 1, 2018 opening statement p. 16-17; 23-24.
In light of defense counsel's line of questioning, and attempt to divert culpability from the
| Appellant to his co-defendants, the Commonwealth was permitted to “make fair comment on the
admitted evidence and provide fair rebuttal to defense arguments.” Commonwealth v. Spotz,
18 A.3d 244, 288 ( Pa. 2011); See also Commonwealth v. Radecki, 180 A.3d 441 (Pa. Super.
32
2018)(stating “[e]ven an otherwise improper comment may be appropriate if it is in fair response
to defense counsel's remarks and must be evaluated in the context in which the comment was
made),
Accordingly, this Court did not err in permitting the Commonwealth to probe further and
present the testimony of Mauri Kelly regarding the Appellant’s prior drug convictions.
Likewise, this Court did not err in permitting the Commonwealth to elicit testimony from
Detective Zech to dispel false inferences regarding the Appellant’s bail amount and innocent
association from his co-defendants; that he was not a drug dealer.
Finally, while the introduction of the Appellant’s prior criminal conviction inherently
catries some degree of prejudice, in light of defense counsel’s rematks in opening statement and
questions on cross-examination of Karl Racavitch and Detective Zech, this Court concluded that
it did not outweigh the probative value of the evidence in this case, The purpose was to
contradict the Appellant’s false and unsolicited assertions of good character.
F. Whether the trial court erred, as a matter of law, and/or abused its discretion when
it failed to grant Appellant’s request for a mistrial after testimony and evidence
regarding Appellant’s prior criminal record was presented to the jury since the
unavoidable effect of not granting a mistrial was to deprive the Appellant of a fair
A motion for mistrial is within the discretion of the trial court and is required only
when an incident is of such a nature that its unavoidable effect is to deprive of a fair and
impartial trial causing prejudice to the defendant. It is within the trial court’s discretion to
determine prejudice. Therefore, the standard of review is whether the trial court abused that
discretion. As previously noted, “an abuse of discretion is not merely an error of judgment, but
is rather the overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the
33
evidence of record.” Commonwealth vy, Antidormi, 84 A.3d 736, 750 (Pa. Super. 2014); See
also Commonwealth v. Radecki, 180 A.3d 441, 457 (Pa. Super, 2018); Commonweaith y.
Lively, 231 A.3d 1003, 1008 (Pa. Super. 2020)(a mistrial “is an extreme remedy that must be
granted only when an incident is of such a nature that its unavoidable effect is to deprive
defendant of a fair trial.”).
The admission of the Appellant’s prior criminal convictions must be evaluated in the
context of the record read as a whole. Nevertheless, even if this Court erred in admitting the
above testimony concerning the Appellant’s prior criminal convictions, such error was harmless
where the uncontradicted evidence of Appellant's guilt was overwhelming. It is well established
that an “error may be deemed harmless, inter alia, where the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was
so insignificant by comparison that the error could not have contributed to the verdict.”
Commonwealth y. Williams, 241 A.3d 1094 (Pa. Super. 2020); See also Commonwealth v,
Hairston, 84 A.3d 687, 671 (Pa. 2014)(the harmless error doctrine “reflects the reality that the
accused is entitled to a fair trial, not a perfect trial.”).
Here, Appellant's co-conspirator, Anthony Jordan, testified in detaii that it was Appellant
otherwise known as “ATL,” who coordinated all aspects of the drug transaction, who was
Donald Miles’ cocaine source, and directed Donald Miles throughout, especially the time and
location wherein Donald Miles could retrieve the cocaine from the Appeilant. Similarly, Karl
Racavitch testified to being provided a quantity of cocaine, and that the cocaine SOUTCE Was 2
person known as “AT L,” who drove a green BMW. In light of the jury's verdict on the
conspiracy charge against Appellant, the jury ostensibly credited this testimony. See, e.g.
Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa. Super. 2018) (stating that “even the
34
uncortoborated testimony of a single witness may alone be sufficient to convict a defendant.”).
The jury also credited the corroborative testimony of the detectives who observed the Appellant
arrive in a green BMW at the agreed upon time as described, and meeting with Donald Miles for
approximately ten (10) minutes. Subsequently, possessing one hundred and ninety ($190.00) of
serialized “buy money,” coupled with the admission of text messages and audio recordings.
Thus, even if the admission of the Appellant’s prior criminal convictions prejudiced the
Appellant, any such prejudice was de minimis and did not influence the jury’s verdict. The
Appellant is not entitled to relief on this claim. See Williams, supra; Lively, supra; See also
Commonwealth v. Richardson, 437 A.2d 1162, 1165 (Pa. 1981){no per se rule requires a new
trial for every reference to prior criminal activity).
G. Whether the trial court erred, as a matter of law, and/or abused its discretion in
failing to allow relevant and competent evidence regarding the Commonwealth
witnesses’ probation files for purposes of impeachment which was part of the
defense trial stratepy?
The Appellant contends this Court abused ifs discretion in precluding evidence
contained within the Commonwealth witnesses’ probation files. An examination of the record
discloses that the Appellant’s post-trial motions and memorandum of law did not challenge or
allege any evidentiary error regarding the Commonwealth’s witnesses’ probation files. In order
to preserve an issue for appellate review, it is necessary that the issue be presented initially to the
trial court for decision via post-trial motions. And this is so, whether the conviction results from
a trial or a plea of guilty. Commonwealth v. Williams, 330 A.2d 854 (Pa, 1975). Issues not
raised in post-trial motions are deemed waived and may not be raised on appeal. See Pa.R. A. |
P. 302(a). Therefore, this issue is waived.
Alternatively, this Court granted defense counsel considerable cross-examination
regarding the Commonwealth witnesses’ probationary history. N.T. May 1, 2018 p. 23-29; 31-
35
33. Defense counsel elicited testimonial evidence at length as to Karl Racavitch’s current
probationary/parole status, 2014 felony drug conviction and sentence, pending probation
violations, probation requirements, and dismissed charges. Id, Defense counsel also elicited
testimonial evidence at length as to Anthony Jordan’s pending criminal charges, unsecured bail
status, and expectations as to leniency. N.T. May 2, 2018 p. 18-22.
There is no merit to the Appellant’s claim, the jury heard detailed evidence of the
Commonwealth witnesses’ potential motive to testify favorably for the Commonwealth and
adverse to the Appellant. This Court afforded the Appellant with adequate opportunity to
demonstrate through cross-examination the credibility, interest or bias of the Commonwealth’s
witnesses, namely Anthony Jordan and Karl Racavitch, See Commonwealth y. Murphy, 591
A.2d 278, 279 (Pa. 1991)(a defendant in a criminal case be allowed to impeach the credibility of
a prosecution witness by cross-examination directed at possible bias deriving from
the witness' probationary status as a juvenile delinquent); Commonwealth v. Case, 469 A.2d
162, 165 (Pa, Super. 1983)(The logical connection between the fact that the witness was
on probation, and the inference to be drawn, that the witness might be biased toward the state, is
clear and direct); Commonwealth v. Adams, 237 A.3d 466 (Pa. Super. 2020)(finding no trial
court error where the court allowed questioning relating to [Jenkins'] probation potentially beng
revoked, which permitted the jury to draw inferences regarding Mr. Jenkins’ potential bias).
In fact, the Appellant's cross-examination of Karl Racavitch more than adequately
established that he was on probation and could be sent to prison for not cooperating with
the Commonwealth. Moreover, the Appellant established that Mr. Racavitch's crimes
underlying his probation were for drug offenses, and that he specifically could have gone to
prison for five years. N.T. May 1, 2018 p. 26. Similarly, the Appellant established that Mr.
36
Jordan expected leniency albeit no specific promises from the Commonwealth relative to his
pending drug offenses. N.T. May 2, 2018 p, 21-22. Here the record demonstrates that the
Appellant fully examined the witnesses’ potential biases.
H. Whether the trial court erred, as a matter of law, and/or abused its discretion in
denying Appelant’s Omnibus Pretrial Motion as it related to suppression since the
Commonwealth lacked reasonable suspicion and/or probable cause to stop the
Appellant’s vehicle and any search and/or recovered evidence resulting from the
improper stop should have been suppressed?
The standard of review in addressing a challenge to a trial court's denial of a suppression
motion is limited to determining whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are correct. Commonwealth vy. LaMonte,
859 A.2d 495, 499 (Pa. Super. 2004). The scope of review is limited:
[W]e may consider only the evidence of the prosecution
and so much of the evidence for the defense as remaits
uncontradicted when read in the context of the record as a whole.
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the court
erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa. Super. 2008)(quoting Commonwealth
vy. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002).
Moreover, it is within the lower court's province to pass on the credibility of witnesses and
determine the weight to be given to their testimony. See Commonwealth y, Clemens, 66 A.3d
373, 378 (Pa. Super. 2013).
Here, the Appellant challenged the initial stop of his vehicle as speculative and
unsupported by reasonable suspicion. The Appellant specifically sought suppression of the items
seized from his person and his vehicle, namely a quantity of cocaine and marijuana, two cell
phones and a large amount of cash commingled with serialized “buy money.”
37
The first of three categories of interaction between police and citizen, is “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.
Commonwealth vy. Fleet, 114 A.3d 849, 845 (Pa. Super. 2015).
A police officer may detain an individual for 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. 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. Commonwealth vy. Ranson, 103 A.3d 73, 77 (Pa. Super.
2014) .
During the suppression hearing, Detective Zech testified candidly that on December 13,
2017, he participated as lead investigator in a “fast-moving” investigation into the trafficking of
cocaine within Lackawanna County, N.Y. April 16, 2018 p. 7. He noted that the investigation
involved the use of a covert audio recording device, wherein detectives listened live to a
controlled purchase of cocaine using a reliable confidential informant. Id, at 8, 12, 17. While
listening live, he learned that the owner of a green BMW with the street name “ATL,” would be
38
providing the cocaine, Id. at 8-9. Detective Zech testified that while conducting surveillance
and listening live to the audio recordings, he observed a green BMW approaching the agreed
upon location. Id. at 9. Detective Zech observed the driver of the green BMW quickly meet
with another male and then return to his vehicle leaving the area, Afterwards, the green BMW
was subjected to a traffic stop. Detective Zech stated: “Because of the explicit conversation
inside of the vehicle and being notified from the confidential informant that the transaction was
made [... ] we had reasonable suspicion to stop the green BMW, and I ordered a traffic stop to
be conducted on the car.” Id. at 10. He further explained: “I’m listening to it live. I can hear
what they [are] saying. I know theit movements, I know what they are going to be doing, they
are speaking about waiting for a dealer to arrive so they can purchase the cocaine, I get
instructions [ . . .] ] could hear it clear as day, ‘take me down to Grove Street.’ They travel there.
Once out of the vehicle now we learn about a black male name ATL that’s going to be arriving
in the BMW, green in color {.. . | within minutes what shows up but a green BMW.” Id. at 20-
21. Lastly, Detective Zech testified that he ordered the traffic stop of the Appellant's vehicle
“based on the reasonable suspicion that drug activity was taking place.” Id. at 27.
Therefore, in assessing the totality of the circumstances, including the audio recordings
and surveillance for over an hour as well as the arrival of the Appellant in his greens BMW at the
agreed upon location, being described as the cocaine source, combined with the completed
cocaine transaction after the Appellant returned to his vehicle, the information was specific
enough that detectives were justified in suspecting criminal activity was afoot and that the -
Appellant was the supplier of the cocaine. The record supports this Court’s conclusion to deny
the Appellant’s motion to suppress. See Commonwealth v. Stilo, 138 A.3d 33 (Pa, Super.
2016); Commonwealth y. Griffin, 954 A.2d 648 (Pa. Super. 2008); Commonwealth v.
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Washington, 63 A.3d 797 (Pa. Super. 2013); Commonwealth v. Gutierrez, 36 A.3d 1104(Pa. Super, 2012)(where information about man carrying heroin was provided to police from a
| person who identified himself, and the information placed the suspect in a particular place at a
particular time in a particular vehicle, the police had reasonable suspicion that criminal activity
was afoot); Commonwealth y, Cruz, 21 A.3d 1247, 1250 (Pa. Super. 2013)(where officer
received radio dispatch to be on lookout for “older model green, small vehicle” since man
driving it had a gun, the officer had reasonable suspicion to stop the vehicle, which matched the
description, one minute later, particularly where complaining witness was in the company of the
police at the time).
I. Whether the trial court imposed an illegal and/or overly harsh sentence by imposing
each sentence in the high-end of the standard range and requiring each sentence to
he run consecutively thereby making the aggregate sentence unnecessarily excessive,
and in only focusing on the seriousness of the charges instead of the rehabilitative
needs of the Appellant, and in otherwise failing to explain or provide adequate
and/or proper basis for the excessive sentence?
Pa. R. A. P, 302 provides that “issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Commenwealth v. Jarvis, 663 A.2d 790, 791 (Pa.
Super. 1995). As such, issues challenging the discretionary aspects of sentencing must be raised
in a post-sentence motion or by raising the claim during the sentencing proceedings. See
| Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super, 2004) (“It is well settled that an
[appellant's challenge to the discretionary aspects of his sentence is waived if the [a]ppellant has
not filed a post-sentence motion challenging the discretionary aspects with the sentencing
court.”). In the present case, the Appellant filed a post-sentence motion and memorandum
wherein, he requested that his offenses were all part of a single transaction, essentially, “the same
bad act,” which required that the offenses be merged, or sentences served concurrently, The
40 |
Appellant alleged that since this Court ordered the offenses be served consecutively, the sentence
was excessive.
Notwithstanding, the Appellant failed to raise this specific claim regarding an alleged
focus “on the seriousness of the charges instead of the rehabilitative needs of the Appellant, and
in otherwise failing to explain or provide adequate and/or proper basis for the excessive
sentence.” In addition, the Appellant did not raise this specific clam contemporaneously during
the sentencing hearing. As such, the Appellant did not give this Court an opportunity to
veconsider or modify his sentence on this basis, and, therefore, the claim is waived, See
Commonwealth v. Reeves, 778 A.2d 691, 692-693 (Pa. Super. 2001)(by failing fo raise the
specific claim that the trial court failed to state reasons for sentence on the record in post-
sentence motion, the trial court was deprived of opportunity to consider claim and thus the claim
was waived on appeal.); Commonwealth y. Mann, 820 A.2a 788 (Pa. Super. 2003); See also
Commonwealth v, Parente, 440 A.2d 549 (Pa. Super. 198$2)(Defendant's contention that he
was entitled to a vacation of judgment and remand for resentencing since trial court failed to
state on the record its reasons for imposing sentence was waived where defendant failed to raise
such claim at sentencing or any motion for reconsideration of the sentence); Commonwealth v.
Turecki, 420 A.2d 658 (Pa. Super. 1980)(Defendant waived any objection to failure of court
below to state its reasons for sentence at time of imposing sentence, as issue was not raised at
sentencing or in defendant's petition for reconsideration of sentence).
However, the Appellant’s claim which challenges the excessiveness of his sentence due
to the consecutive nature was properly preserved in his post-trial motion and memorandum. The
merits of a discretionary sentencing issue, involve a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was
Al
properly preserved at sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim,P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b); Commonwealth y. Cook, 941 A.2d 7, 11 (Pa.
Super. 2007). Accordingly, the appeal is timely, and properly preserved, therefore, this Court
examines whether the Appellant raises a substantial question.
A substantial question as to the inappropriateness of a sentence under the Sentencing
Code is present “only when the appellant advances a colorable argument that the sentencing
judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing process.” Commonwealth
y. Glass, 50 A.3a 720, 727 (Pa. Super. 2012). In the present case, the Appellant cannot
demonstrate that this Court acted inconsistently with a specific provision of the Sentencing Code
or contrary to the fundamental norms underlying the sentencing process. Importantly, the
sentence is a guideline sentence, and imposed well within the statutory limits. See
Commonwealth v, Dodge, 77 A.3d 1263, 1272 n. 8 (Pa. Super. 2013).
The Appellant contests this Court’s imposition of consecutive sentences, which he alleges
makes the sentence excessive. “The general rule in Pennsylvania is that in imposing
a sentence the court has discretion to determine whether to make it concurrent with
| or consecutive to other sentences then being imposed or other sentences previously imposed.”
Commonwealth vy. Graham, 661 A.2d 1367, 1373 (Pa. 1995). A challenge to the imposition of
consecutive rather than concurrent sentences, however, does not present a substantial question.
Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa. Super. 2005). Such a claim may
raise a substantial question “in only the most extreme circumstances, such as where the
42
aggregate sentence is unduly harsh, considering the nature of the crimes and the length of
imprisonment.” Commonwealth v, Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013); See also
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) quoting,
Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super, 1995)(“An allegation that
a sentencing court failed to consider or did not adequately consider certain factors does not raise
a substantial question that the sentence was inappropriate.”); Commonwealth v. Coss, 695 A2D
$31, 833 (Pa, Super, 1997)(An allegation that a sentence is manifestly excessive fails to raise a
substantial question when the sentence-imposed falls within the statutory limits);
Commonwealth y. Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008)(a claim that the trial
court failed to consider the defendant's rehabilitative needs, age and educational background
does hot present a substantial question).
Based upon the testimony and evidence presented during a two- day jury trial, as well as
review of the pre-Sentence investigation, and the Sentencing Guidelines, considering the
commentary by defense counsel and the Commonwealth at the time of sentence, this Court did
not find that the Appellant should be afforded a “volume discount” for his crimes by having
all sentences run concurrently. This Court imposed sentence with due regard to various factors
and the Appellant fails to raise a substantial question. See Commonwealth v. Hoag, 665 A.2d
1212 (Pa. Super. 1995); See also Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa.
1994)(raising a concern that defendants not be given “volume discounts” for multiple criminal
acts that arose out of one larger criminal transaction); Commonwealth v. Rhoades, 8 A.3d 912,
919 (Pa. Super. 2010) (stating that where the sentencing court had the benefit of a pre-
sentence investigation report, it may be assumed that the sentencing court was aware of all
relevant information regarding a defendant, including any mitigating factors), Commonwealth
43
y, Devers, 546 A.2d 12 (Pa. 1988) (holding that where a pre-sentence report exists, there is a
presumption that the sentencing judge was aware of and adequately considered information
relevant to the defendant's character, as well as any mitigating factors).
Finally, a sentence imposed within the guidelines may be reversed only if application of
the guidelines is clearly unreasonable. Commonwealth v. Macias, 968 A.3d 773, 777 (Pa,
Super. 2009). Unreasonable means a decision that is either irrational or not guided by sound
judgment. Commonwealth vy. Walls, 926 4.2d 957, 963 (Pa. 2007). Further, a trial court is not
required to provide a statement of reasoning for a sentence imposed within the standard range of
the sentencing guidelines. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).
| Here, the sentence in this case simply does not present “extreme circumstances,” nor is
the sentence unduly harsh or unreasonable considering the nature of the crimes, and the
Appellant’s leadership role as supplier in a cecaine trafficking operation involving a middile-man
and arunner. In fact, the Appellant held a street name,
The Appellant faced a maximum sentence of forty-nine (49) years’ incarceration.
However, this Court imposed an aggregate incarceration sentence of five and one half {5 Ys)
years to twelve (12) years which was well within the maximum allowed, as the Appellant was
subject to an enhanced sentence for a prior drug trafficking offense.
The sentencing record reflects that this Court considered the Appetlant’s previous
convictions for dealing drugs, especially that he had served substantial prison time for those
offenses. This Court found that the Appeliant continued to circulate drugs into the community.
The standard range of the guidelines for delivery of a controlled substance is twenty-one Qty-
twenty-seven (27) months based on the Appellant’s prior record score of five (5), which the
Appellant received a minimum at the high end of the standard range. The standard range for
AA
conspiracy to deliver a controlled substance is twelve (12) — eighteen (18) months, which the
Appellant received a minimum at the high end of the standard range, and the standard range for
possession with intent to deliver a controlled substance is twenty-one (21)- twenty-seven (27)
months, which the Appellant received a minimum at the low end of the standard range.
Discretion was imposed in directing the sentences be served consecutively. The Appellant
committed two (2) separate felony drug offenses facilitating a drug trafficking scheme. In fact,
the Appellant’s drug trafficking has been evolving since 1991. Accordingly, the decision to
impose consecutive, rather than concurrent sentences does not present a substantial question for
review.
Michael J. Barrasse
CC: Notice of the entry of the foregoing Memorandum has been provided to each party pursuant
to Pennsyivania Rule of Criminal Procedure 114 by emailing time-stamped copies to the
following individuals:
Lisa Swift, Esq.
Terrence McDonald, Esq.
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