Com. v. Bowmar-Sweet, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TURRELL M. BOWMAR-SWEET :
:
Appellant : No. 429 MDA 2022
Appeal from the Judgment of Sentence Entered February 17, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000784-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED: DECEMBER 19, 2022
Turrell Bowmar-Sweet appeals from the judgment of sentence, entered
in the Court of Common Pleas of Dauphin County, after he was convicted of
possession with intent to manufacture or deliver (PWID).1 After review, we
affirm.
On July 29, 2019, Vice Detective Nicholas Ishman from the City of
Harrisburg Police Bureau contacted a confidential informant (CI)2 to set up a
“controlled buy.” N.T. Jury Trial, 12/8/21, at 22. The CI informed Detective
Ishman that the target would be an individual named Turrell Sweet, known as
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1 35 P.S. § 780-113(a)(30).
2 Detective Ishman testified that the CI started working with the police after
the CI’s friend died of a drug overdose. The CI felt an obligation to help. N.T.
Jury Trial, 12/8/21, at 47. The CI is a heroin user, has never been charged
with any crime, has aided in prior investigations with Detective Ishman, and
has always been reliable. Id. at 46.
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“Face.” Id. at 29-30. While in Detective Ishman’s presence, the CI called
Bowmar-Sweet and ordered a bundle (10 bags) of heroin. Id. at 31-32.
Detective Ishman contacted Detective Shelby Day, employed by the Swatara
Police Department and assigned to the Dauphin County Drug Task Force, to
assist in the transaction. Id. at 22, 30.
Detective Ishman showed Detective Day a picture of Bowmar-Sweet, id.
at 72, and Detective Day searched the CI for contraband and illegal drugs.
Id. at 33. Following a negative search of the CI, Detective Day drove herself
and the CI in an unmarked police vehicle to the meeting location, the parking
lot of Beer King, located on the 600 Block of Division Street in Harrisburg. Id.
at 73. On the way to Beer King, Bowmar-Sweet advised the CI that only half
a bundle of heroin (5 bags) was available to purchase and that the new
purchase price would be $25. Id. at 74. Thereafter, Detective Day and the
CI pulled over to meet with Detective Ishman, who issued the correct amount
of cash. Id. at 74.
Upon arriving in the Beer King parking lot, the CI called Bowmar-Sweet,
who requested that the CI pull into an alleyway due to his concern about
cameras in the parking lot. Id. at 76, 82. Detective Day testified that
Bowmar-Sweet arrived at the unmarked vehicle and entered the passenger
side rear door. Id. at 76-77. Thereafter, the CI and Bowmar-Sweet
exchanged money for heroin, which had been placed “inside a kind of paper
towel napkin.” Id. at 82, 85. The parties stipulated the substance was heroin.
Id. at 43, 85. The transaction took less than ten seconds. Id. at 85.
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Surveillance photographs were taken during the controlled buy. See
Commonwealth Exhibits 2-6.
Following the transaction, Detective Day and the CI met Detective
Ishman3 at a prearranged location. Detective Day gave Detective Ishman the
drugs purchase from Bowmer-Sweet and the CI was searched again for drugs,
money or drug paraphernalia; the search was negative. Id. at 39.
On February 20, 2020, Bowmar-Sweet was charged with PWID and
criminal use of a communication facility.4 A jury trial was held on December
8, 2021, after which Bowmar-Sweet was found guilty of PWID.5 The court
deferred sentencing and ordered a pre-sentence investigation (PSI) report.
On February 17, 2022, Bowmar-Sweet was sentenced to two to four years’
incarceration, followed by five years of probation. Bowmar-Sweet filed a
timely notice of appeal on March 8, 2022. Both Bowmar-Sweet and the trial
court have complied with Pa.R.A.P. 1925. Bowmar-Sweet raises the following
issues for our review:
1. Whether the evidence was sufficient to show that []Bowmar-
Sweet possessed with the intent to deliver heroin, when the
photographic evidence was not clear, and the [CI] did not
testify?
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3During the transaction, Detective Ishman was parked about a block away.
N.T. Jury Trial, supra at 34.
4 18 Pa.C.S.A. § 7512.
5 The Commonwealth withdrew the criminal use of a communication facility
charge.
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2. Whether the trial court erred in not providing the missing
person jury instruction because the record lacks any claim,
outside of a generic safety reason, that the informant could not
be provided, particularly when the undercover officer who was
with the [CI] during the drug transaction also testified?
Bowmar-Sweet first raises a challenge to the sufficiency of the evidence.
Our standard of review regarding challenges to the sufficiency of evidence are
well-settled:
[W]e evaluate the record in the light most favorable to the
Commonwealth as verdict winner, giving it the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt. Any doubt
about the defendant’s guilt is to be resolved by the fact-finder
unless the evidence is so weak and inconclusive that, as matter of
law, no probability of fact can be drawn from the combined
circumstances. Additionally, the Commonwealth may sustain its
burden solely by means of circumstantial evidence.
Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) (citations
and quotations omitted).
“In applying the above test, the entire record must be evaluated[,] and
all evidence actually received considered. [T]he trier of fact while passing
upon the credibility of witnesses and the weight of the evidence produced, is
free to believe all, part, or none of the evidence.” Commonwealth v. Orr,
38 A.3d 868, 872-73 (Pa. Super. 2011). Additionally, facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence. Id. at 872.
Further, to sustain a conviction, evidence of identification need not be
positive and certain, and any indefiniteness or uncertainty in the identification
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testimony goes to its weight. Commonwealth v. Minnis, 458 A.2d 213, 234
(Pa. Super. 1983). “[A]lthough identification based solely on common items
of clothing and general physical characteristics is insufficient to support a
conviction, such evidence may be considered to establish identity along with
other circumstances and the proffered identification testimony.” Id. at 233
(citations omitted).
Here, Bowmar-Sweet contends that the Commonwealth failed to identify
him as the alleged dealer and, therefore, failed to prove that he constructively
possessed heroin. Appellant’s Brief, at 16. Specifically, Bowmar-Sweet claims
that the surveillance photographs merely show his general proximity to the
buy location, which is insufficient to prove his identity. Id. Additionally, he
argues the photographic evidence is blurred where “[The] photographs [are]
so indistinct that it is [the] equivalent of a general description of any black
man, walking across a local retail parking lot, wearing a hat which casts a
shadow against his face.” Id. This claim is meritless.
The crime of PWID is defined in the Crimes Code 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.” See 35 P.S. § 780-113(a)(30).
To prove PWID, the Commonwealth must prove either actual or
constructive possession. Commonwealth v. Macolino, 469 A.2d 132, 134
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(Pa. 1983). “Constructive possession [is] the ability to exercise conscious
dominion over the illegal substance[, along with] the power to control the
contraband and the intent to exercise that control.” Id. The intent to exercise
conscious dominion can be inferred from the totality of the circumstances. Id.Instantly, a reliable CI had informed Detective Ishman that he could
purchase heroin from a male known as “Face,” whose name was “Turrell
Sweet.” N.T. Jury Trial, supra, at 46, 72. Detective Ishman heard the CI call
the target to arrange the purchase. Id. at 31. Detective Ishman’s testimony
connects this phone call to the individual present at the buy location. See id.
at 102 (Detective Ishman testifying, “In this case clearly we spoke to
somebody on the phone who met us at the exact location we agreed upon
with the exact amount of drugs we agreed upon, so I think it was pretty safe
to infer from that that our defendant was using that phone.”).
Moreover, Detective Day testified that she was presented with a picture
of Bowmar-Sweet prior to the transaction, id. at 73, she was present in the
car where the transaction occurred, and she positively identified the target as
Bowmar-Sweet. Id. at 96 (Detective Day testifying, “I identified [Bowmar-
Sweet] on the day of the transaction.”). Id. Detective Day’s identification is
based on more than general physical characteristics where she testified that,
“[t]he defendant [had] very distinctive [facial] markings [], which [she] could
clearly positively identify to be [Bowmar-Sweet.]” Id. at 77; see Minnis,
supra at 233. This testimony is supported by surveillance photographs. See
Commonwealth Exhibits 2-6. Indeed, describing Commonwealth Exhibit 4,
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Detective Day testified that “you can see the discoloration that is evident on
his face.” N.T. Jury Trial, supra at 80.
We agree with the trial court that the jury, having heard the detective’s
testimony and viewed the surveillance photographs, could reasonably have
inferred that Bowmar-Sweet was the target of the controlled buy and that he
intentionally or knowingly possessed heroin with an intent to deliver that
substance. See Trial Court Opinion, 5/2/22, at 5-7.
Next, Bowmar-Sweet argues that the trial court erred in not providing a
missing person jury instruction because the Commonwealth failed to produce
a material witness—namely the CI. Appellant’s Brief, at 26. Specifically,
Bowmar-Sweet contends that the CI is only available to the Commonwealth
and that the CI’s testimony would not be merely cumulative because the
informant was the person who initiated this operation. Bowmar-Sweet is
entitled to no relief.
Our standard of review regarding a trial court’s jury instructions is
whether the trial court abused its discretion or inaccurately stated the law.
See Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014). “A
trial court has broad discretion in phrasing its instructions, and may choose
its own wording so long as the law clearly, adequately, and accurately
presented to the jury for its consideration.” Id.This Court has explained the “missing witness” adverse inference rule
as follows:
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When a potential witness is available only to one of the parties to
a trial, and it appears this witness has special information material
to the issue, and this person’s testimony would not merely be
cumulative, then if such party does not produce the testimony of
this witness, the jury may draw an inference that it would have
been unfavorable.
Commonwealth v. Evans, 644 A.2d 570, 573 (Pa. Super. 1995). Evans
lists circumstances where a trial court may properly refuse to provide a
missing person instruction such as when “[t]he testimony of such a witness is
comparatively unimportant, cumulative, or inferior to that already presented.”
Id.Although we agree that the CI is only available to the Commonwealth,6
a review of the record confirms the trial court’s determination that the CI’s
testimony would have been cumulative. Trial Court Opinion, supra at 8-9.
In Commonwealth v. Payne, 656 A.2d 77, 80 (Pa. 1994), our Supreme
Court found that the testimony of a CI would not be cumulative where the
state trooper, who made an undercover purchase of drugs in the company of
the CI, was the only witness for the prosecution. Here, unlike in Payne, the
Commonwealth’s evidence consisted of two witnesses and surveillance
photographs. Thus, the CI’s testimony would have been cumulative to
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6 In Evans, this Court held that “merely because a [CI] has knowledge of a
defendant’s nickname and whereabouts does not necessarily compel the
conclusion that the defendant has any knowledge of or can reach the
informant in order to subpoena the informant as a witness.” Id. at 555. Here,
the CI knew Bowmar-Sweet’s nickname was “Face” and how to contact him.
N.T. Jury Trial, supra at 29. Additionally, following the controlled buy, the
police waited to arrest the target in order to protect the identity of the CI. Id.
at 28. As such, Bowmar-Sweet is unlikely to know who the informant is and,
thus, would be unable to contact the informant.
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Detective Ishman’s testimony regarding the initial phone call to Bowmar-
Sweet and cumulative to Detective Day’s testimony regarding the transaction.
Additionally, Detective Day’s identification testimony was supported by
surveillance photos. See Commonwealth Exhibits 2-6. Indeed, “where other
corroboration of the officer’s testimony exists, disclosure of the informant’s
identity is . . . not necessarily required.” Id. at 79.
Further, Bowmar-Sweet’s claim of mistaken identity based on conflicting
phone numbers on various police reports7 is unavailing. Detective Ishman
testified that the CI provided the telephone number that the CI used to contact
Bowmar-Sweet, which is also the phone number on the incident report. See
Commonwealth Exhibit 12. The number is also listed as Bowmar-Sweet’s
telephone number in the PSI. See Pre-Sentencing Investigation Report,
1/25/22, at 1.
In light of the foregoing, we conclude that the evidence, including the
reasonable inferences to be drawn therefrom, was sufficient to allow the jury
to find Bowmar-Sweet guilty of PWID. Lake, supra. Moreover, due to its
cumulative nature, we find that the trial court did not err in failing to give a
missing witness instruction. Evans, supra.
Judgment of sentence affirmed.
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7 Although Detective Ishman was asked to read the conflicting phone number
from a document, Attorney McNulty does not identify the document on the
record. N.T. Jury Trial, supra at 51. Further, Detective Ishman testified that
the conflicting number was automatically populated from a previous incident
involving Bowmar-Sweet and that is it common for individuals in the drug
trade to have more than one phone number. Id. at 104.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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