Com. v. Baizar, C. ( 2021 )

J-S55029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES WILLIAM BAIZAR :
:
Appellant : No. 449 WDA 2020
Appeal from the Judgment of Sentence Entered February 25, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001016-2019
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED: APRIL 30, 2021
Charles William Baizar pled guilty to criminal conspiracy of possession
with intent to deliver (“PWID”) heroin. As part of his sentence, he was ordered
to pay $10,229 in lab fees jointly and severally with his co-defendants,
Jermaine Belgrave and Sheldon Morales. The majority vacates Appellant’s
sentence and remands for further development of the record before
resentencing, because it finds that Appellant was “saddled with lab fees having
to do with crimes with which he was never charged.” Majority Memorandum
at 7. While I agree with the majority that Appellant has raised a challenge to
the legality of his sentence that we can reach, I disagree with its conclusion
that improper fees were imposed. Since I would find that the lab fees
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* Retired Senior Judge assigned to the Superior Court.
J-S55029-20
stemmed from Appellant’s conviction, and because I further disagree that
additional development of the record is needed, I respectfully dissent.
I begin with the pertinent facts, which were derived from Appellant’s
statement to police and corroborated by the video surveillance footage
recovered from the Erie County Marriot Hotel’s security system. On February
7, 2019, Appellant, Jermaine Belgrave, Sheldon Morales, and an unknown
black male known as “Gwajo” drove from Chicago to the Marriott Hotel. The
men intended to sell 1,000 grams of heroin to a black male known as “Greg”
for $80,000. Minutes after their arrival, Greg arrived in a black SUV vehicle
with an unknown driver. Appellant and co-defendant Morales approached the
vehicle. Appellant was carrying the bag that contained the heroin. However,
when Appellant reached the driver side of the vehicle, the driver exited and
began shooting at Appellant. Appellant dropped the bag containing the heroin
and fled. Meanwhile, co-defendant Belgrade returned fire on the two buyers.
The driver retrieved the bag of heroin, dropping a package that contained 300
grams of heroin, and drove away. Appellant and Belgrade were both shot,
but survived.
Appellant was charged with various drug offenses, but ultimately pled
guilty to conspiracy to commit PWID. At sentencing, the Commonwealth
asked that “427, 580, 1,444, 274, 7,145, 246, and 113” in lab fees be imposed
as part of Appellant’s sentence. N.T. Sentencing, 2/25/20, at 10. Based on
their review of the record, the majority aptly summarized what these at-issue
fees pertained to:
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First, a Laboratory User Fee Statement (statement) for $427 for
AFIS latent print entry and comparison and an administrative
handling fee; this fee pertains to Appellant and codefendants
Jermaine Belgrave and Sheldon Morales, as well as an additional
suspect named Eduardo Santana. Second, a statement for $580
pertaining to a case of attempted homicide, with an administrative
handling fee and a firearm functionality test with discharged bullet
and cartridge case comparison. Third, a statement for $1,444,
with an administrative handling fee and bloodstain identification
and DNA sample preparation. Fourth, a statement for $274, with
an administrative handling fee and NIBIN Entry/Analysis, which
appears to pertain to certain ballistics analysis conducted with the
National Integrated Ballistic Information Network. Fifth, a
statement for $7,145 with an administrative handling fee and DNA
analysis that appears to involve samples taken from a parking
garage and a handgun and rounds found therein, with a few other
miscellaneous sample sources such as coffee lids. Sixth, a
statement for $246, with the administrative handling fee and a
cartridge case comparison. Seventh, a statement for $113 with
the administrative handling fee and a line item for drug analysis.
Majority Memorandum at 6-7. The court ordered that Appellant pay the
requested lab fees jointly and severally with his co-defendants. N.T.
Sentencing, 2/25/20, at 11.
Applying 42 Pa.C.S. § 1725.3, the Majority concludes that the court
erred when it imposed costs relating to anything other than drug testing,
because Appellant was not charged with nor convicted of any homicide related
activity.1 See Majority Memorandum at 7-8. The Majority’s conclusion fails
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1 Section 1725.3 allows for imposition of laboratory or paramedic user fees,
covering the costs of prosecution, on a defendant who was convicted of a
violation of the Controlled Substance, Drug, Device and Cosmetic Act, “in
every case where laboratory services were required to prosecute the crime or
violation.” 42 Pa.C.S. § 1725.3(a). The statute also requires the state police
laboratory to submit a report of the “actual cost” of the laboratory services
provided in that prosecution. 42 Pa.C.S. § 1725.3(b)(2).
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to account for the fact that Appellant was convicted of conspiracy to commit
PWID. Thus, determination of the appropriate lab fees hinges on an
examination of the extent of Appellant’s conspiracy liability, not simply his
own role in the conspiracy.2
By his own admission, Appellant agreed with co-defendants Jermaine
Belgrave and Sheldon Morales to commit the drug deal. This admission is
corroborated by Appellant’s arrival in the same vehicle as his co-defendants,
and his approach of the SUV with co-defendant Morales. During the course of
committing the failed drug deal, Appellant and his co-defendants were
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2 Regarding criminal conspiracy liability we have explained:
The essence of a criminal conspiracy is a common understanding,
no matter how it came into being, that a particular criminal
objective be accomplished. Therefore, a conviction for conspiracy
requires proof of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can seldom, if ever,
be proved and it need not be, for proof of a criminal partnership
is almost invariably extracted from the circumstances that attend
its activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances of the
parties, and the overt acts of the co-conspirators sufficiently prove
the formation of a criminal confederation. The conduct of the
parties and the circumstances surrounding their conduct may
create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt. Even if the conspirator
did not act as a principal in committing the underlying crime, [he]
is still criminally liable for the actions of his co-conspirators taken
in furtherance of the conspiracy.
Commonwealth v. Gross, 232 A.3d 819, 839 (Pa.Super. 2020) (en banc)
(cleaned up).
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engaged in a shooting. While Appellant himself did not fire a weapon, his co-
defendant Belgrave did indeed shoot a firearm. Officers recovered 300 grams
of heroin, spent projectiles, and a discarded firearm from the immediate
vicinity of the crime scene which were submitted for laboratory testing.
Several samples that appeared to be blood were also taken from areas in the
garage adjacent to the parking lot and submitted for laboratory testing.
Given the factual context of the case, laboratory testing for Appellant’s
prosecution involved firearms and tool marks examination, DNA analysis, and
fingerprint comparison in addition to drug testing. The fact that Appellant was
not charged with possessing or shooting a firearm is of no moment. Similarly,
the Majority’s reliance on case law that holds that costs cannot be imposed
absent a conviction is inapposite. See Majority Memorandum at 4-6.
Appellant was convicted of a conspiracy that involved a shooting following a
failed drug deal. Thus, consistent with § 1725.3, Appellant could be ordered
to pay laboratory costs associated with investigation of the conspiracy,
including testing of the firearms and the drugs, and the DNA recovered from
the scene. A review of the at issue laboratory reports reveals that this is
exactly what the Commonwealth asked for and what the sentencing court
imposed.
The Majority also holds that a remand is needed so that the
Commonwealth can file “an itemized lab fee report delineating the costs
associated with Appellant’s conviction” consistent with § 1725.3. Majority
Memorandum at 8. Despite its detailed summary of the lab costs based on
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the lab reports in the certified record, the Majority nevertheless concludes that
it “cannot determine whether these laboratory fees were within the sentencing
court’s authority to impose” without additional factual development. Id. at 9.
I find this result unnecessary.
I agree that § 1725.3 requires the state police laboratory to submit a
report of the “actual cost” of the laboratory services provided in that
prosecution, which is something that the Commonwealth did not do here. 42
Pa.C.S. § 1725.3(b)(2). However, since the seven laboratory reports explain
the testing conducted and the costs generated as a result, I do not believe
that a remand for further factual development on this basis is needed. While
I do not condone the Commonwealth’s failure to submit an itemized list of the
laboratory fees associated with Appellant’s prosecution, I also would not
expend valuable court resources by remanding for a hearing on a matter that
has already been sufficiently developed.
In my view, Appellant’s sentence is legal and should be upheld because
the sentencing court possessed the authority to impose upon Appellant all
costs associated with the investigation of the conspiracy, and there exists
sufficient evidence to discern the actual costs. Accordingly, I respectfully
dissent.
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