Com. v. Kemp, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERIC KEMP :
:
Appellant : No. 1372 EDA 2019
Appeal from the Judgment of Sentence Entered July 8, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006120-2012
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 31, 2020
Eric Kemp appeals nunc pro tunc from the judgment of sentence of one
and one-half to three years of incarceration imposed following his conviction
for manufacture, delivery, or possession with intent to deliver controlled
substances (“PWID”). We affirm.
The facts adduced at the trial leading to Appellant’s conviction are as
follows. On March 27, 2012, Sergeant Tamika Allen of the Philadelphia Police
Department observed Appellant on the 600 block of N. 41st Street in
Philadelphia, Pennsylvania. See N.T. Trial, 5/12/14, at 37. Sergeant Allen
observed Appellant make what she believed to be drug transactions with two
separate individuals, wherein she witnessed the individuals hand an
indeterminate amount of cash to Appellant, who responded by handing each
person an unidentified “small item.” Id. at 45-46. Sergeant Allen relayed
these observations to other officers who subsequently arrested one of the
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individuals, Jamie Michaeux, who was found to have a small orange-tinted
packet of marijuana in his possession. Id. at 42, 74-75. The second subject
was not apprehended. Id. at 61.
After these two interactions, Appellant left the area and Sergeant Allen
lost sight of him. Approximately ten minutes later, a person matching
Appellant’s description was observed nearby by Officer Justin Falcone, who
was wearing plainclothes and sitting in an unmarked police vehicle. Id. at
103. Officer Falcone exited the vehicle, identified himself as a police officer
and approached Appellant, who immediately took off running. Id. at 102-
103. As he chased Appellant, Office Falcone saw Appellant throw several
unidentified items from his pockets, including something that made a loud
“metallic sound” as it struck the ground. Id. at 103, 110. Ultimately, Officer
Falcone’s partner, Officer Patrick DiDomenico, cut off Appellant’s flight in his
patrol vehicle, apprehended Appellant, and placed him in custody. Id. at 112.
A loaded .38 caliber revolver was recovered from an alleyway close to the
scene of the chase by Officer Falcone, and Officer DiDomenico recovered $1.00
in U.S. currency from Appellant’s jacket pocket. Id. at 110-112, 151. Nothing
else of evidentiary value was recovered on Appellant’s person, or from the
area of his flight from police. Id.
Appellant filed a pre-trial motion to suppress the recovered firearm. At
the subsequent hearing, Appellant argued that “Officer Falcone did not have
reasonable suspicion or probable cause to chase and pursue” Appellant. See
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N.T. Hearing, 8/23/13, at 5. Ultimately, the trial court denied Appellant’s
motion to suppress. The case proceeded to a jury trial on charges of PWID
and various charges related to Appellant’s alleged unlawful possession of a
weapon. The jury found Appellant not guilty on the weapons charge, but guilty
of PWID. See N.T. Sentencing, 7/8/14, 3-4. Appellant was sentenced to one
and one-half to three years of incarceration followed by five years of
probation. Id. at 26.
Appellant’s trial counsel did not file an appeal on his behalf. On August
9, 2016, Appellant filed a timely PCRA petition, alleging per se ineffective
assistance of trial counsel. PCRA counsel was appointed, who filed an
amended petition seeking reinstatement of Appellant’s direct appellate rights
nunc pro tunc. After an evidentiary hearing was held on November 18, 2016,
the PCRA court denied the amended petition. On appeal, this Court vacated
the PCRA court’s order and remanded for reinstatement of Appellant’s direct
appeal rights. See Commonwealth v. Kemp, 201 A.3d 891 (Pa.Super.
2018) (unpublished memorandum at 7). This nunc pro tunc appeal followed.
Due to the novel procedural posture of the instant case, Appellant was
never directed to file a concise statement of errors pursuant to Pa.R.A.P.
1925(b). Additionally, the trial court issued a statement stating that it would
not be filing an opinion pursuant to Rule 1925(a), on the grounds that the
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original trial judge is no longer available.1 See Trial Court Order, 5/20/2019;
see also, e.g., Pa.R.A.P. 1925(a)(1). However, where the original trial judge
is “unavailable to provide a supplemental opinion,” we are permitted to review
both “legal issues” and “factual findings” in the first instance. See Dolan v.
Hurd Millwork Company, Inc., 195 A.3d 169, 176 (Pa. 2018).2
Appellant raises three issues for our review:3
1. Is the Appellant entitled to an arrest of judgment on the
charge of PWID, where the verdict was not supported by
sufficient evidence?
2. Is the Appellant entitled to a new trial on the charge of
PWID, where the verdict was against the weight of the
evidence?
3. Did the trial court err in denying the motion to suppress
evidence even though there was no probable cause to
apprehend and arrest Appellant?
Appellant’s brief at 3.
Appellant’s first issue challenges the sufficiency of the evidence
underlying his conviction for PWID. Our standard of review is de novo,
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1
The trial judge was the Honorable Carolyn H. Nichols, who was elected to
this Court in 2017.
2
The holding in Dolan v. Hurd Millwork Company, Inc., 195 A.3d 169 (Pa.
2018), arose in the context of appellate review of a bench trial. However, the
scope of that holding was not explicitly limited to such a procedural posture
and we discern that it applies with equal force to factual and legal findings
made in connection with a jury trial.
3
On September 25, 2020, the Commonwealth filed an application for relief
related to its briefing schedule and an application for permission to file a post-
submission communication. Both applications were granted.
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although our scope of review is limited to considering the evidence of record
and drawing all reasonable inferences arising therefrom in the light most
favorable to the Commonwealth as the verdict winner. Commonwealth v.
Rushing, 99 A.3d 416, 478 (Pa. 2014). “Where there is sufficient evidence
to enable the trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of the evidence claim
must fail.” Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012).
At the outset of our analysis, we note that Appellant’s legal argument
with respect to sufficiency is woefully underdeveloped. Beyond a correct
recitation of the basic legal standard applicable in the sufficiency context,
Appellant does not cite the statute under which he was convicted and fails to
identify or describe the discrete elements of the crime of PWID. See
Appellant’s brief at 8-10. Appellant’s argument generally takes issue with the
quality of the Commonwealth’s evidence and attempts to undermine the
testimony of the officers. Id. at 8 (“The evidence presented in this case is
inherently unreliable, contradictory and insufficient to sustain a verdict.”)
(citing Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993)).4
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4
A substantial portion of Appellant’s discussion of sufficiency is devoted to
citing and discussing irrelevant case law that does not pertain to sufficiency of
the evidence. See Appellant’s brief at 9-10. These inapposite cases uniformly
concern legal issues related to probable cause, searches, and seizures. See
Commonwealth v. Shaw, 383 A.2d 496 (Pa. 1978) (adjudicating issues
related to whether police possessed probable cause independent of the
sufficiency of the underlying conviction); Commonwealth v. Boyer, 314
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We find no merit in Appellant’s arguments. To sustain a conviction for
PWID, the Commonwealth must prove both: (1) the possession of the
controlled substance; and (2) the intent to deliver the controlled substance.
See, e.g., Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008);
see also 35 P.S. § 780-113(a)(30). “In determining whether there is
sufficient evidence to support a PWID conviction, all facts and circumstances
surrounding the possession are relevant, and the Commonwealth may
establish the essential elements of the crime wholly by circumstantial
evidence.” Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa.Super.
2005). Our Supreme Court has also noted that “the amount of the controlled
substance is not crucial to establish an inference of possession with intent to
deliver, if . . . other facts are present.” Commonwealth v. Ratsamy, 934
A.2d 1233, 1237 (Pa. 2007) (internal citation and quotation marks omitted).
Sergeant Allen, who observed Appellant engage in two separate hand-
to-hand transactions, was highly experienced and trained in narcotics
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A.2d 317, 318 (Pa. 1974) (same); Commonwealth v. Todd, 584 A.2d 1002,
1004-05 (Pa.Super. 1991) (same); Commonwealth v. Lewis, 576 A.2d 63,
66-67 (Pa.Super. 1990) (same). These cases bear no relevance to the
sufficiency of the Commonwealth’s evidence. Overall, Appellant’s argument
is greatly wanting in detail and specificity. Our “traditional determination of
evidentiary sufficiency . . . is fundamentally an individualized, case-by-case
endeavor where the nature and type of evidence introduced at trial is
measured according to . . . legal benchmarks.” Commonwealth v. Brown,
52 A.3d 1139, 1165-66 (Pa. 2012) (distinguishing the holding in Karkaria,
supra). While Appellant has noted potential inconsistencies in the testimonies
of the officers described above, he has largely failed to explain how those
inconsistencies do not align with the statutory elements of PWID.
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operations. See N.T. Trial, 4/12/14, at 32-34. While she was not able to
identify what Appellant was exchanging for money, her training and
experience led her to conclude that she was observing drug transactions on a
street corner in a high-crime area. Id. at 40-42. Appellant stipulated at trial
that the substance ultimately recovered from Mr. Michaeux was marijuana.
Id. at 156. Additionally, Sergeant Allen’s testimony established that Mr.
Michaeux was observed consummating a financial transaction with Appellant
immediately before he was taken into custody. Moreover, it was undisputed
that the only item found on Mr. Michaeux’s person was the still-packaged
container of marijuana. Id. at 74, 81-82. While Appellant himself did not
have marijuana on his person when he was arrested, Officer Falcone testified
that, while attempting to flee, Appellant discarded various objects from his
person that were not successfully recovered.5 Id. at 129.
Viewing this evidence in the light most favorable to the Commonwealth,
we conclude that there is sufficient evidence to support Appellant’s conviction
for PWID. Evidence of Appellant’s possession of the marijuana found on Mr.
Michaeux may be circumstantial, but this evidence nonetheless establishes
that: (1) Mr. Michaeux accepted a small object from Appellant in exchange for
money immediately before Mr. Michaeux was taken into custody; and (2) no
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5
Appellant’s flight from police, in and of itself, also evinces consciousness of
guilt. See, e.g., Commonwealth v. Montgomery, 234 A.3d 523, 540 (Pa.
2020) (collecting cases).
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other items of note were found or recovered on Mr. Michaeux’s person by the
police. Specifically, these facts support a reasonable inference that the item
passed to Mr. Michaeux by Appellant was the small packet of marijuana
ultimately recovered by law enforcement. As such, there was sufficient
evidence to demonstrate that Appellant possessed and delivered the
marijuana recovered from Mr. Michaeux. No relief is due on this claim.
Appellant’s second argument challenges the weight of the
Commonwealth’s evidence. A claim sounding in weight of the evidence is
waived if the Appellant does not timely raise it in a post-sentence motion.
See Pa.R.Crim.P. 607. Instantly, Appellant did not file a post-sentence
motion, nor did he request reinstatement of his post-sentence rights in his
initial PCRA petition. Thus, this Court’s reinstatement of Appellant’s appellate
rights nunc pro tunc did not include the reinstatement of Appellant’s post-
sentence motion rights. See Kemp, supra at 7. Therefore, this claim is not
properly before us and is waived. See, e.g., Commonwealth v. Fransen,
986 A.2d 154, 157-58 (Pa.Super. 2009) (reinstatement of appellate rights
nunc pro tunc does not automatically reinstate post-sentence motion rights).
Appellant’s final argument alleges that the trial court erred in denying
his pre-trial request to suppress the firearm seized following his foot chase
from law enforcement.6 See Appellant’s brief at 12-15. When reviewing a
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6
As noted above, Appellant was not convicted of any firearms offenses.
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challenge of a denial of a motion to suppress, we are limited to determining
whether the suppression court’s factual findings are supported by the record
and whether its legal conclusions are correct. Commonwealth v. Jones,
988 A.2d 649, 654 (Pa. 2010). When the Commonwealth is the prevailing
party with respect to suppression, we may consider only the evidence
presented by the Commonwealth at the suppression hearing, and that
evidence for the defense which remains uncontradicted when read in the
context of the record as a whole. Commonwealth v. Wright, 224 A.3d
1104, 1108 (Pa.Super. 2019).
From the outset of our analysis, we note that Appellant’s argument is
poorly developed in that it references and discusses case law that is largely
irrelevant to the issue raised.7 Nonetheless, we readily discern that Appellant
is arguing that the officers did not have sufficient suspicion to detain him
based upon the totality of the information available to them. Consequently,
Appellant asserts that the firearm seized after his flight should have been
suppressed by the trial court. Id. at 7 (asserting that the police “had no
probable cause to pursue or search or apprehend and arrest” Appellant).
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7
Specifically, Appellant cites to and discusses New Jersey case law concerning
the “plain view” doctrine, which is not at issue in this case. We do not find
this precedent relevant or persuasive in our review of this case. See, e.g.,
Branham v. Rohm and Haas Co., 19 A.3d 1094, 1107 (Pa.Super. 2011)
(“Where there is controlling authority in Pennsylvania law, we need not consult
the decisions of sister jurisdictions to reach a disposition.”).
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At the suppression hearing, both Sergeant Allen and Officer Falcone
testified that their intent in stopping Appellant was to arrest him upon
suspicion that he was engaged in the sale of narcotics. See N.T. Suppression
Hearing, 8/23/13, at 10, 32, 38. As such, the officers intended to subject
Appellant to a warrantless arrest, which must be supported by probable cause.
See, e.g., Commonwealth v. Harris, 176 A.3d 1009, 1022 (Pa.Super.
2017) (“It is well-settled that a warrantless arrest must be supported by
probable cause.”). With respect to probable cause, our Supreme Court has
instructed as follows:
[P]robable cause exists where the facts and circumstances within
the officers’ knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is
being committed. With respect to probable cause, [our Supreme
Court has] adopted a “totality of the circumstances” analysis . . . .
The totality of the circumstances tests dictates that we consider
all relevant facts, when deciding whether [the officers had]
probable cause.
Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (internal citations
omitted); see also Harris, supra at 1022 (same).
As this Court has noted in the past, the discrete issue of warrantless
arrests following police observations of suspicious hand-to-hand transactions
has been addressed by this Court on many prior occasions:
Our case law is replete with decisions addressing probable cause
for arrest in the context of drug trafficking on public streets. It is
well-established that not every transaction involving unidentified
property exchanged on a street corner gives rise to probable cause
for arrest. Commonwealth v. Colon, 777 A.2d 1097, 1102
(Pa.Super. 2001). However, when certain other factors are
present, police officers may be justified in concluding that the
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transaction is drug-related, and hence that probable cause for
arrest exists. Id.
Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa.Super. 2007). Indeed,
our precedent indicates that police observations of even a single hand-to-hand
transaction of unknown items may establish probable cause under the right
circumstances. See, e.g., Commonwealth v. Smith, 979 A.2d 913, 915,
919-20 (Pa.Super. 2009) (finding probable cause based upon an experienced
narcotics officer’s observation of a single hand-to-hand transaction in which
an “unknown item” was exchanged for cash); Wells, supra at 1196-97
(same).
Instantly, the testimony at the suppression hearing in this case
established the following relevant pieces of information: (1) Appellant was
observed engaging in multiple hand-to-hand transactions, wherein he
distributed small items in exchange for cash; (2) one of Appellant’s putative
“customers” was stopped by the police and still-packaged marijuana was the
only relevant item discovered on his person; (3) the officer observing these
interactions had eight years of experience in narcotics interdiction experience
and had previously worked on “hundreds” of cases; and (4) Appellant had
previously been arrested in the same neighborhood by Officer Falcone. See
N.T. Suppression Hearing, 8/23/13, at 7-12, 32-33, 39-40.
Although inartfully drafted, Appellant’s argument is essentially that
Sergeant Allen’s observation of the hand-to-hand transactions, alone, could
not establish probable cause for an arrest as a matter of law. See Appellant’s
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brief at 12-15. However, there is no such per se rule under Pennsylvania law.
Cf. Smith, supra at 919-20; Wells, supra at 1195.
In sum, we find that Appellant’s view of this issue flatly ignores the
totality of the attendant circumstances. In both Smith and Wells, this Court
credited surveillance of a single, uncorroborated hand-to-hand transaction.
Id. Instantly, Sergeant Allen not only witnessed multiple such transactions,
but also corroborated the likelihood that Appellant was selling drugs through
the successful search and seizure of Mr. Michaeux that preceded Appellant’s
arrest. When viewed through the lens of Sergeant Allen’s substantial
experience, these facts are compelling. See Commonwealth v. Thompson,
985 A.2d 928, 935 (Pa. 2009) (“[A] police officer’s experience may fairly be
regarded as a relevant factor in determining probable cause.”). Furthermore,
Appellant was also previously known to Officer Falcone, which further
buttresses the Commonwealth’s case. See, e.g., Wells, supra at 1196 (“[A]
police officer’s knowledge of drug-trafficking activity in a particular
neighborhood . . . can derive from . . . the officer’s involvement in the prior
arrests of drug traffickers in the neighborhood.”).
Placing the officers’ observations and knowledge in the proper context,
we conclude that they had probable cause to subject Appellant to a
warrantless arrest. Accord Smith, supra at 919-20; Wells, supra at 1195.
As detailed above, our review of the certified record supports these
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conclusions and we discern no legal error in the trial court’s denial of
Appellant’s suppression request. Accordingly, no relief is due on this claim.8
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/20
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8
We also note that the doctrine of harmless error applies in the context of
suppression issues. See Commonwealth v. Petroll, 738 A.2d 993, 1005
(Pa. 1999). Specifically, harmless error exists if the reviewing court is
convinced from the record that, inter alia, the error did not prejudice the
defendant or the prejudice was de minimis. See Commonwealth v. Fulton,
179 A.3d 475, 493 (Pa. 2018). Even assuming, arguendo, that the trial court
erred in denying Appellant’s motion to suppress, we would find such error to
be harmless. In relevant part, the jury acquitted Appellant of all firearms-
related charges brought by the Commonwealth. See Trial Disposition and
Dismissal Form, 5/14/14, at 1. Based upon this verdict, it is clear that the
jury did not credit the firearm recovered from the alleyway as having belonged
to Appellant. Consequently, Appellant was not prejudiced by the admission of
the firearm at trial.
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