Com. v. Patterson, B. ( 2020 )

J-S59020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON PATTERSON :
:
Appellant : No. 3432 EDA 2018
Appeal from the Judgment of Sentence Entered October 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009603-2017
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2020
Appellant Brandon Patterson appeals from the judgment of sentence
following a jury trial and convictions for possession of a controlled substance
with intent to deliver (PWID).1 On appeal, Appellant contends the trial court
erred by permitting a Commonwealth witness to testify generally about the
concerns that confidential informants have about their safety. We affirm.
The parties do not dispute the following facts, which were elicited at
trial.
The Commonwealth called Police Officer John Mouzon as its first
witness [at trial]. Officer Mouzon testified that he worked in the
Narcotics [Field] Unit and often worked with CIs. He stated that
CIs[’] identities are typically kept confidential for the CIs’ safety
and in order to preserve the integrity of ongoing investigations.
He stated that on August 24, 2017, a CI was sent to a house at
3109 North 24th Street in order to engage in a controlled drug
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1 35 P.S. § 780-113(a)(30).
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transaction. Officer Mouzon stated that he served as the “eye”
and observed all of the CI’s actions. The CI made a controlled
purchase from [Appellant] while Officer Mouzon watched in
plainclothes from an unmarked vehicle, with two additional police
officers serving as backup. The CI turned over four knotted clear
bags of marijuana. Later that same day, the CI returned to 3109
North 2[4]th Street to make another controlled buy from
[Appellant]. This time, he purchased two bags of crack cocaine.
Officer Mouzon testified that he obtained a search warrant and
returned to 3109 North 24th Street the next day. Officer Mouzon
testified that he knocked on the door and then waited on the curb.
He saw [Appellant] open the door, look up and down the block,
and then go back inside. Approximately one minute later, the
police officers knocked at the door again but no one opened the
door. Police officers used a Halligan tool[2] to break the lock and
a battering ram to knock the door down. When they entered the
property, [Appellant] was lying on the couch next to the front door
with his eyes closed. He claimed he had been sleeping. After
[Appellant] was placed under arrest, police officers lifted the couch
cushions and recovered a .380 caliber revolver. From
[Appellant’s] person, police recovered marijuana as well as keys
that locked and unlocked the front door of the residence. From
the living room area, police recovered new and unused Ziploc
baggies, a scale, and a book bag with [Appellant’s] identification
card inside.
Next, [Appellant] asked that his counsel be removed from his case
and that he be assigned new defense counsel. [The trial court]
denied his request.
Police Officer Barry Charles testified next for the Commonwealth.
Officer Charles testified that on August 24, 2017, he was working
with a CI on the 3100 block of N. 24th Street. He stated that he
and Officer Wimms met with the CI, searched him for contraband,
and with coordination from Officer Mouzon, sent the CI to make a
purchase. When the CI returned, he gave Officer Charles four
knotted plastic baggies containing marijuana. Officer Charles
testified that later that same day, the CI made an additional
purchase and turned over two green, heat-sealed packets of crack
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2A Halligan tool is “similar to a crowbar.” Chamberlain v. White Plains,
986 F. Supp. 363, 375 (S.D.N.Y. 2013).
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cocaine. Officer Charles stated that he accompanied other police
officers the next day when they executed their search warrant at
3109 N. 24th Street but did not enter the property.
Police Officer Mario Cruz testified next for the Commonwealth.
Officer Cruz stated that on August 25, 2017, he assisted in
executing a search warrant at 3109 N. 24th Street. He stated that
he observed Officer Mouzon knock on the door and then return to
the sidewalk. [Appellant] opened the front door, looked up and
down the block, and then closed the door. Shortly thereafter, the
police knocked and announced their presence. When no one
answered the door, they entered the property by forcefully
ramming in the door. Officer Cruz testified that when he entered
the residence, he observed [Appellant] on the couch feigning
sleep. From [Appellant’s] person, police recovered a bag of
marijuana and a set of keys. Officer Cruz stated that he
questioned [Appellant] in order to fill out the biographical
information for [police] paperwork. Officer Cruz also searched the
living room and recovered a book bag containing a black plastic
bag holding a box of .32 cartridges. From a different black bag in
the living room, Officer Cruz recovered several new and unused
sandwich bags as well as a scale. Last, Officer Cruz recovered a
cell phone and an ID card with [Appellant’s] photo on it.
Next, Police Officer Carl Stubbs testified for the Commonwealth.
Officer Stubbs testified that he served as backup to the police
officers executing the search warrant at 3109 N. 24th Street.
Officer Stubbs stated that he helped force the door down with the
battering ram and then saw [Appellant] lying on the couch,
purportedly asleep. After other officers moved [Appellant] and
placed him in handcuffs, Officer Stubbs flipped the couch cushion
where [Appellant] had been resting and recovered a loaded black
Smith & Wesson .38 special firearm.
Police Officer Stephen Berardi, a member of the Crime Scene Unit,
testified next for the Commonwealth as an expert in crime scene
investigations and the recovery of latent prints and DNA from
firearms. Officer Berardi testified regarding the process used to
identify and collect fingerprints and DNA evidence from firearms,
including the factors that make this process difficult. He testified
that over the course of his career, he had tested between 200-
300 firearms for fingerprints and DNA, and out of those, recovered
only three identifiable prints and two successful DNA comparisons.
Officer Berardi testified that he did not examine or test the firearm
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recovered from [Appellant’s] couch, stating that there was very
little likelihood that there would have been identifiable fingerprints
or DNA due to contamination and the fact that it had been found
between couch cushions.
Next, counsel entered evidence by way of stipulation by and
between counsel. First, counsel stipulated that if Police Firearms
Identification Unit Officer Raymond Andrejczak were called to
testify as an expert in the field of firearms identification and
analysis, he would testify that he received a Smith & Wesson
Model 442 .38 caliber special revolver, that this firearm was
loaded with five live rounds, that he test-fired the firearm and
determined that it was operable. Second, counsel stipulated that
if Police Analyst Valerie Davis were called to testify as an expert
in chemical analysis and identification of controlled substances,
she would testify that she received four clear plastic bags
containing .472 grams of marijuana and two green Ziploc bags
containing .047 grams of crack cocaine and that they were tested
and found to be controlled substances. Third, counsel stipulated
that if Police Analyst Doris Dean were called to testify as an expert
in chemical analysis and identification of controlled substances,
she would testify that she received one clear bag of marijuana
recovered from [Appellant’s] person, that it weighed 3.344 grams,
and that it was tested and found to be a controlled substance. At
the conclusion of stipulations, the Commonwealth moved its
exhibits into evidence and rested.
[Appellant] called Court Clerk Joyce Scott . . . as [his] only
witness. [Appellant’s] counsel showed Scott the criminal
complaint filed by the District Attorney’s Office in this matter and
asked Scott to read the address listed for [Appellant]. Scott stated
that the address listed was 3123 N. Judson Street, Philadelphia,
Pennsylvania.
Trial Ct. Op., 5/13/19, at 2-6 (citations omitted and some formatting altered).
Appellant was arrested and charged with, among other things,
possession with the intent to deliver a controlled substance. On March 1,
2018, Appellant filed a motion to reveal the CI’s identity. Appellant did not
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seek to preclude testimony about the general safety concerns of CIs in
general. The trial court denied the motion on March 14, 2018.
On August 19, 2018, Appellant filed a motion in limine seeking to
preclude the Commonwealth from introducing “any and all testimony that the
confidential informant’s safety may be jeopardized and/or has been
jeopardized.” Mot. in Lim., 8/19/18, at 1 (unpaginated). In pertinent part,
Appellant sought to specifically preclude testimony that the CI in question “had
to move three times, that the [CI’s] family ha[d] been threatened, that their
home was vandalized, etc.” Id. Appellant reasoned that such testimony was
not relevant and more prejudicial than probative. Id. at 3.
On August 21, 2018, the trial court held a hearing on Appellant’s motion.
The trial court began by restating Appellant’s issue as the CI’s “safety may be
jeopardized or has been jeopardized.” Immediately following the trial court’s
restatement, the below exchange ensued, during which Appellant’s counsel
did not object to testimony about the generalized safety concerns of CIs in
general:
[Commonwealth]: Your Honor, I anticipate that my colleague,
whether she asks for the missing instruction or not, is going to
argue the substance of it and argue to the jury that we should
have called the confidential informant, that we could have called
the confidential informant, that we had the ability to do so and
chose not to do, and that they should feel a certain kind of way
about that. In order for me, at closing, to –
THE COURT: Let me ask, were you intending to argue that?
[Appellant’s trial counsel]: The defense’s argument would be that
the drug sales happened between the drug dealer and the
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confidential informant, that the confidential informant was the one
that had the face-to-face interaction and the confidential
informant is not here.
THE COURT: You’re not asking for the missing witness instruction
on the confidential informant; is that what you’re saying?
[Appellant’s trial counsel]: I mean, Your Honor, we may ask it as
the trial moves forward.
THE COURT: You may, okay. So, then I have to deal with it if it’s
something you may ask for. Well, I guess we’re really going to
have to cross that bridge when we get to it. It depends upon what
testimony is elicited concerning -- so, which one of your witnesses
would be testifying about the confidential informant?
[Commonwealth]: It would be the eye, Police Officer Mouzon.
And, it wouldn’t be anything specific in relation to this confidential
informant or threats by this defendant against a confidential
informant. It would just be information about what happens to
confidential informants, generally, when their identity is exposed.
That allows me to fortify my case against the argument that
because we failed to call this person, the jury needs to make some
sort of inference about my decision not to do that, because it
allows me to say to them: You heard what happens when
confidential informants’ identities are exposed. Coming to court
and testifying is the same thing as exposing their identity, and
that’s why I chose to do that.
THE COURT: The motion in limine with regard to that is denied.
Anything else? Hearing nothing else from either counsel, correct?
N.T., 8/21/18, at 10-12. Appellant’s trial counsel did not object.
Subsequently, Appellant was tried by a jury and convicted of PWID.
Following a pre-sentence investigation, the trial court sentenced Appellant to
seventeen months to sixty months’ incarceration on October 22, 2018.
Appellant did not file a post-sentence motion and timely appealed on
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November 21, 2018. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)
statement.
Appellant raises one issue on appeal:
Did not the trial court err as a matter of law in allowing the
Commonwealth to introduce Officer Mouzon’s testimony regarding
the general safety concerns of confidential informants, as any and
all testimony that the confidential informant’s safety may be
jeopardized and/or has been jeopardized was not relevant in this
case under Pennsylvania Rules of Evidence 401 and 402, and was
inadmissible under Rule 403 because it is prejudicial?
Appellant’s Brief at 3.
Before summarizing Appellant’s argument, we set forth the following as
background. During her opening statement, Appellant’s counsel stated that
the Commonwealth’s confidential informant would not testify. N.T. Trial,
8/22/18, at 30 (“You’ll also hear, shockingly and most astonishingly, that this
secret informant that was employed to buy drugs, that secret informant will
not testify during this trial.”).3
During the Commonwealth’s case-in-chief, the below testimony was
elicited:4
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3 The trial court, in its Pa.R.A.P. 1925(b) opinion, stated that Appellant had
argued “that the Commonwealth should have called the CI to testify and that
by not doing so, the police possibly were fabricating charges and were denying
[Appellant] his right to confrontation.” Trial Ct. Op. at 6. Appellant’s counsel
did not address this in her opening argument.
4 We note that the Commonwealth, unlike Appellant, provided pinpoint
citations to the trial testimony relevant for Appellant’s issue on appeal.
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[Commonwealth:] Officer [Mouzon], you’re here today because of
a narcotics investigation that occurred over the course of August
24th and 25th of 2017, correct?
[Officer Mouzon:] That’s correct.
[Q:] What was the number of the CI you used for that operation?
[Officer Mouzon:] 1079.
[Q:] For how long have been using that CI?
[Officer Mouzon:] I’ve used that CI numerous times, but they also
worked with other members of the Narcotics Field Unit in my
squad. They actually – that particular CI is assigned to another
officer, where they’ve worked with him for over 15 years.
[Q:] Have you ever told me who CI 1079 is?
[Officer Mouzon:] No.
[Q:] Have you ever told anyone in my office who 1079 is?
[Officer Mouzon:] No.
[Q:] Have you ever told anyone from my office the identity of any
CI with whom you’ve worked with?
[Officer Mouzon:] No.
[Q:] Why don’t you do that?
[Officer Mouzon:] Just, basically, to keep the identity of the CI
confidential, and also for the CI’s safety.
[Q:] What would happen to the CI’s safety if you revealed the
information?
[Officer Mouzon:] Well, basically, I think --
[Appellant’s Counsel:] Objection, Your Honor.
THE COURT: Rephrase the question.
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[Q:] What would the safety concern be if a CI’s information was
to be released?
[Officer Mouzon:] Well, their life could be in jeopardy, because a
lot of times they give us information of different locations, that
persons lives within the City of Philadelphia. And, we also have
open investigations where those investigations could be
jeopardized if they’re known to the public exactly who that person
is that’s giving us information and they’re working with the police.
[Appellant’s trial counsel:] Your Honor, objection.
THE COURT: Overruled.
N.T. Trial, 8/22/18, at 40-42.
In this direct appeal, Appellant argues that the trial court erred by
permitting Officer Mouzon to testify about “the general safety concerns of
confidential informants.” Appellant’s Brief at 12. In Appellant’s view, such
testimony was not relevant and even if relevant, was more prejudicial than
probative. Id. at 12-14. Appellant asserts the Commonwealth improperly
introduced this irrelevant evidence to create “an impression that the informant
had been threatened by” Appellant. Id. at 14. But, Appellant claims, the
Commonwealth presented no evidence of any actual threats to the CI. Id.
Even if such evidence was relevant, Appellant contends the evidence
was more prejudicial than probative. Id. at 16. Appellant maintains that such
evidence improperly confused or distracted the jury from whether he was
guilty or innocent. Id. at 17. Appellant also takes issue with the
Commonwealth’s suggestion that such evidence was a fair response to his
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opening statement in which he takes issue with the Commonwealth’s failure
to call the CI as a witness.5 Id.
The standard of review for an issue regarding the admission of evidence
is well-settled:
the admissibility of evidence is within the sound discretion of the
trial court and we will not reverse absent an abuse of discretion. .
. . An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Leap, ___ A.3d ___, ___, 2019 WL 5483726, *3 (Pa.
Super. 2019) (citations and quotation marks omitted).
Pennsylvania Rule of Evidence 103 provides that in order to preserve an
evidentiary issue for appellate review, a party must timely object and state
“the specific ground, unless it was apparent from the context.” Pa.R.E.
103(a)(1)(B); see also Pa.R.A.P. 302(a). In Commonwealth v. Lopez, 57
A.3d 74 (Pa. Super. 2012), this Court stated as follows:
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5 As noted above, the trial court’s Rule 1925(b) opinion reasoned that Officer
Mouzon was permitted to testify about general safety concerns regarding
confidential informants because Appellant’s counsel had argued in “her
opening and closing statements that the Commonwealth should have called
the CI to testify and that by not doing so, the police possibly were fabricating
charges and were denying [Appellant] his right to confrontation.” Trial Ct. Op.
at 6. The trial court’s reliance on Appellant’s trial counsel’s closing statement
as justification to overrule Appellant’s mid-trial objection is unclear. In any
event, the trial court failed to state its rationale in overruling Appellant’s
objection to testimony about the safety concerns of CIs in general.
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A party complaining, on appeal, of the admission of
evidence in the court below will be confined to the specific
objection there made. If counsel states the grounds for an
objection, then all other unspecified grounds are waived and
cannot be raised for the first time on appeal.
Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d
162, 170 (1999); Commonwealth v. Stoltzfus, 462 Pa.
43, 60, 337 A.2d 873, 881 (1975) (stating: “It has long been
the rule in this jurisdiction that if the ground upon which an
objection is based is specifically stated, all other reasons for
its exclusion are waived, and may not be raised post-trial”);
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.
Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 816
(2004) (stating party must make timely and specific
objection to preserve issue for appellate review).
This Court has deemed an appellate claim that testimony
constituted inadmissible hearsay waived[,] where[] at trial,
counsel merely said without this explanation “Objection.”
Lopez, 57 A.3d at 81-82 (some citations omitted). We have overlooked such
a deficiency if the nature of the objection was apparent from the context,
particularly if the trial court ruled on it. See Pa.R.E. 103(a)(1)(B).
In any event,
[t]o constitute reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the complaining
party. An evidentiary error of the trial court will be deemed
harmless on appeal where the appellate court is convinced,
beyond a reasonable doubt, that the error could not have
contributed to the verdict.
Commonwealth v. Manivannan, 186 A.3d 472, 480 (Pa. Super. 2018)
(citations omitted and some formatting altered). “[A]n error cannot be held
harmless unless the appellate court determines that the error could not have
contributed to the verdict. Whenever there is a reasonable possibility that an
error might have contributed to the conviction, the error is not harmless.”
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Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978) (citation and
quotation marks omitted).
[F]actors to be considered in weighing harmlessness of error
include: (1) whether error was prejudicial, and if so,
whether it was de minim[i]s; (2) whether erroneously
admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to
erroneously admitted evidence; and (3) whether evidence
of guilt was so overwhelming, as established by properly
admitted and uncontradicted evidence, that prejudicial
effect of error was insignificant.
Commonwealth v. DeJesus, 880 A.2d 608, 614 (Pa. 2005) (citation omitted
and some formatting altered).
Initially, we note that Appellant never filed a motion in limine to preclude
testimony about the safety concerns of CIs in general. As noted above,
Appellant filed a motion in limine to preclude specific testimony about the
safety concerns of CI 1079 in particular. Mot. in Lim., 8/19/18, at 1. Indeed,
Appellant detailed the particular testimony he wanted precluded. See id.
But in response to Appellant’s motion in limine, the Commonwealth
countered that it would not introduce specific testimony about CI 1079. See
N.T., 8/21/18, at 10. Rather, the Commonwealth claimed Officer Mouzon
would testify “about what happens to confidential informants, generally, when
their identity is exposed.” See id. at 11. Appellant did not object to the
Commonwealth’s notice of its intention to present such general testimony and
therefore failed to preserve his claim for appellate review. See id. at 9-12.
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In any event, the trial court ruled on Appellant’s objection at trial.
Unfortunately, Appellant did not state the basis for his objection at trial. See
N.T. Trial, 8/22/18, at 42. Appellant did not specifically object on the basis of
relevance or on the basis that the disputed testimony was more prejudicial
than probative. See id. The trial court, similarly, did not state its basis for
overruling the general objection. See id.
It is not clear to this Court whether the trial court was overruling
Appellant’s objection on the basis of relevance under Pa.R.E. 402 or that the
proffered evidence was more probative than prejudicial under Pa.R.E. 403.
Appellant raised both arguments in his direct appeal. Because of Appellant’s
lack of specificity in stating the basis for his trial objection, he has waived the
issue for failure to preserve. See Lopez, 57 A.3d at 81-82.
Even if Appellant preserved his objection to the testimony about the
general safety concerns of all CIs, Appellant failed to establish reversible error
by demonstrating he was significantly prejudiced by the testimony.6 See
DeJesus, 880 A.2d at 614. As established at trial, two police officers testified
that they saw the CI purchase drugs from Appellant. Officers Cruz and Stubbs
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6Further, as set forth above, Appellant moved to preclude specific testimony
about the safety concerns of CI 1079 in particular, see Mot. in Lim., 8/19/18,
at 1, not general safety policies regarding all CIs, as the trial court reasoned.
See Trial Ct. Op. at 7. The trial court also erred when it stated that Appellant
did not file a motion to reveal the CI’s identity. See id. at 8 n.1. Appellant
did so on March 1, 2018.
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testified about executing a search of Appellant’s residence and recovering
contraband. See generally Trial Ct. Op. at 2-6. In addition, Officer Cruz
testified that contraband was recovered from Appellant’s person. See id. We
note that Appellant did not challenge the admission of the contraband into
evidence on appeal. For these reasons, we affirm.
Judgment of sentence affirmed.
Judge Lazarus joins the memorandum.
Judge McLaughlin files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/20
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