Com. v. Seng, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANNY SENG :
:
Appellant : No. 1180 MDA 2021
Appeal from the Judgment of Sentence Entered July 9, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002743-2020
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 15, 2022
Danny Seng appeals from the aggregate judgment of sentence of seven
to fourteen years of incarceration, which was imposed after a jury convicted
him of possession with intent to deliver (“PWID”) heroin/fentanyl, PWID
cocaine, conspiracy, recklessly endangering another person (“REAP”), and
tampering with evidence. We vacate Appellant’s judgment of sentence and
remand for a new trial.
On the morning of August 23, 2019, Appellant and two individuals,
James Patterson (“Patterson”) and Sean Quarles (“Quarles”), drove in a silver
Infiniti to the R&M Variety shop in Harrisburg. While inside the store, video
surveillance captured the three men standing at the counter from 11:48 a.m.
to 11:51 a.m. During that period, Appellant pointed to a digital scale.
Ultimately, Patterson purchased that digital scale, as well as a mortar and
pestle, a Pyrex measuring cup, and a straining utensil, all of which were
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consistent with the manufacturing of crack cocaine. The three men then left
in the silver Infiniti.
At approximately 7:30 p.m., Patrol Officer Andrew Cortelazzi observed
a silver Infiniti with the license plate “LCR 2079” in an area of the city known
for drug-trafficking. The Infiniti had illegal tint on the rear windows and an
inoperable center brake light. The officer followed the vehicle until it began
to park. At that time, the officer activated his emergency lights to initiate a
traffic stop, but the Infiniti drove away at a high rate of speed. As
Officer Cortelazzi pursued the vehicle, he observed a blue bag being thrown
from the passenger’s side of the Infiniti. Officer Cortelazzi notified other
officers to be on the lookout for the vehicle. In the meantime, he stopped his
pursuit to investigate the discarded bag. Inside the bag, he recovered what
was later tested and confirmed as a waxy paper packet containing 12.32
grams of heroin and fentanyl, a knotted plastic bag corner containing one MDA
tablet, one white glassine bag marked with a snake head image and “420
VENOM” with cocaine residue, five pink glassine bags containing a total of 0.85
grams of heroin and fentanyl, one partial pink glassine bag containing residue,
one white glassine bag marked with a snake head image and “420 VENOM”
with residue, one knotted plastic bag containing 12.3 grams of cocaine base,
0.06 grams of marijuana, $106.01 in cash, a piece of paper, numerous rubber
bands, grains of rice, one metal razor blade, a pencil, a plastic toy, metal
scissors, four empty plastic bags, a firearm holster, a straw with residue, and
a digital scale.
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Later that evening, Patrol Officer Brian Carriere received an advisory
report of an abandoned vehicle on Bombaugh Street in Harrisburg.
Officer Carriere responded to the area and found the silver Infiniti with license
plate “LCR 2079” parked in the middle of the street. Edwin Aleman, Sr.
(“Aleman”), who owns a garage in the area, had earlier observed the Infiniti
stop in the middle of the road because another vehicle was obstructing traffic.
The driver and front seat passenger emerged from the vehicle and ran through
an alleyway. Officers reviewed footage from a video camera on a nearby
chicken coop and identified the two men as Appellant and Quarles. At trial,
Aleman viewed the same video and identified the two men in the video as the
same men who parked the Infiniti near his garage and ran through the alley.
The Infiniti was towed and on August 26, 2019, a search warrant was
executed. The search revealed, inter alia, a cell phone and a receipt from the
R&M Variety Shop. The car and some of the items were dusted for finger and
palm prints. Patterson was the source for the print lifted from the cell phone,
while Patterson, Quarles, ad Appellant were sources for some of the nineteen
prints lifted from inside the vehicle. As a result of the foregoing, an arrest
warrant was issued for Appellant.
Meanwhile, and also on August 26, 2019, Appellant’s state parole agent,
Erin Henry (“Henry”), visited Appellant’s approved address and had a meeting
with him without issue. Some time after that visit, Henry learned of the arrest
warrant. She attempted to contact Appellant, but he could no longer be found
at his approved address. Appellant did not notify Henry of an address change,
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despite being required to do so, and did not contact her after the August 26,
2019 visit. A search warrant was executed at Appellant’s approved residence
in September, which revealed a digital scale and a small amount of marijuana.
However, Appellant was not present. The United States Marshals Fugitive
Task Force attempted to locate Appellant, but he was not located until his
arrest in June 2020.
On May 17, 2021, Appellant proceeded to a four-day joint jury trial with
co-defendant Quarles. The Commonwealth presented the above evidence,
including testimony from two state parole agents who had supervised
Appellant over Appellant’s objection. Additionally, an expert witness opined
that the items recovered from the discarded blue bag were possessed with the
intent to deliver.
Appellant testified on his own behalf. According to Appellant, he pointed
to the scale to let Patterson know he had the same scale at home for his
personal marijuana use. As to the location where the vehicle was ultimately
abandoned, Appellant testified that he had gone with Quarles and Patterson
to Aleman’s garage for an inspection before going to the R&M Variety Store,
but because Quarles did not have insurance documents, they had to return
later. When Quarles picked up Appellant later in the day to return to the
garage, Appellant sat in the front passenger’s seat. During the ensuing chase,
Appellant asked him to pull over or to let him out, but Quarles sped away from
the officer and discarded the blue bag from the vehicle. Appellant did not
know what was in the bag. He claimed that he ran from the scene and stopped
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reporting to parole out of fear of being labeled a snitch and because he did
not yet have enough money to hire legal counsel for the instant charges.
At the conclusion of the trial, the jury convicted Appellant of all charges.1
On July 9, 2021, the trial court sentenced Appellant to the following concurrent
terms of incarceration: seven to fourteen years for PWID heroin/fentanyl, two
and one-half to five years for PWID cocaine, seven to fourteen years for
conspiracy, one to two years for REAP, and 9 months to two years for
tampering with evidence. Appellant filed a post-sentence motion, which the
trial court denied. This timely filed appeal followed. Both Appellant and the
trial court have complied with Pa.R.A.P. 1925. Appellant presents the
following issues for our review:
A. Whether the trial court erred in allowing state parole agents to
testify Appellant was on state parole; implicating Appellant’s
prior conviction for an unrelated offense?
B. Whether the trial court erred in allowing the testimony of
Appellant’s state parole agents regarding Appellant’s behavior
while on supervision?
C. Whether the trial court erred in accepting the jury’s verdict
where the Commonwealth failed to present sufficient evidence
of possession?
D. Whether the trial court erred in accepting the jury’s verdict
which was contrary to the evidence presented at trial, which
supported only co-defendant Quarles possession of the
narcotics?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
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1 Quarles was also convicted as charged. He has separately appealed his
judgment of sentence to this Court at 1204 MDA 2021.
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We begin with Appellant’s sufficiency challenge.2 Whether the evidence
was sufficient to support the conviction presents a matter of law; our standard
of review is de novo and our scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting
our inquiry,
[w]e assess the evidence and all reasonable
inferences drawn therefrom in the light most favorable
to the verdict-winner. We must determine whether
there is sufficient evidence to enable the fact-finder to
have found every element of the crime beyond a
reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment
for that of the factfinder. In addition, we note that
the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may
sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Whether evidence was properly admitted does not factor into our
analysis, as sufficiency is not determined upon a diminished
record. Lastly, the 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.
____________________________________________
2 We begin with Appellant’s sufficiency challenge because, if granted, the
remedy would be discharge on his PWID charges, whereas the remedy for a
successful challenge to the admissibility or weight of the evidence would be a
new trial. See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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Commonwealth v. Bowens, 265 A.3d 730, 740–41 (Pa.Super. 2021)
(cleaned up).
Specifically, Appellant challenges the sufficiency of the Commonwealth’s
evidence to prove the possession element of his PWID charges. See
Appellant’s brief at 19. According to Appellant, nobody testified that he was
the one who threw the blue bag out the window and nothing found on him or
in his residence supported his possession of the items in the bag. Id. at 20.
Thus, Appellant contends that he was merely present near the bag and that
was insufficient to convict him of PWID. Id. at 21.
Since Appellant was not found to be in actual possession of the drugs,
the Commonwealth’s case rested on constructive possession, which is “a legal
fiction, a pragmatic construct to deal with the realities of criminal law
enforcement. Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.”
Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). The
Commonwealth must establish “conscious dominion,” which is defined as “the
power to control the contraband and the intent to exercise that
control.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004)
(citation omitted). In assessing whether the Commonwealth has established
the power and intent to exercise control, we look to the totality of the
circumstances:
Constructive possession may be proven by circumstantial
evidence and the requisite knowledge and intent may be inferred
from examination of the totality of the circumstances. Moreover,
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we review circumstantial evidence under the same standard as
direct evidence, i.e., that a decision by the trial court will be
affirmed so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt.
Commonwealth v. Smith, 146 A.3d 257, 263 (Pa.Super. 2016) (quotation
marks and citations omitted). “It is well settled that facts giving rise to mere
‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case
of constructive possession.” Commonwealth v. Valette, 613 A.2d 548, 551
(Pa. 1992). Thus, we have established that a minimum requirement in
constructive possession cases is that the defendant have knowledge of the
item’s existence. Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa.Super.
1982) (“At the least, the evidence must show that the defendant knew of the
existence of the item.”) (citations omitted).
The trial court summarized its conclusions regarding Appellant’s
sufficiency challenge as follows:
Based on the totality of all this evidence discussed above, it
was reasonable for the jury to find that Appellant was guilty of
possession of the fentanyl heroin mixture and the cocaine with
intent to distribute. As to the element of possession, even if
Quarles was the owner of the Infiniti, was the individual who threw
the contraband from the Infiniti, and who physically controlled the
contraband during the incident, it does not necessarily follow that
there was insufficient evidence to find that Appellant
constructively possessed the contraband. On the evening in
question, Appellant and Quarles were both seated in the front of
the Infiniti right next to each other, and, therefore, both would
have had equal access and control over the area of the car from
which the contraband was thrown, and Appellant would have had
the same access to and dominion over the contraband that
Quarles did. Therefore, to the extent it was not Appellant who
decided to fling the contraband out of the window, this fact is of
no moment to establishing the element of constructive
possession. These facts combined with Appellant’s consciousness
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of guilt which can reasonably be inferred by his flight from the
Infiniti on the night in question, his subsequent absconding from
his place of residence, and his failure to make any contact with his
parole officer, is more than sufficient for a reasonable jury to find
that the requisite element of possession was established based on
the totality of the circumstances.
Trial Court Opinion, 11/8/21, at 11.
Upon review, we agree with the trial court’s analysis and adopt it as our
own. Viewing all the evidence admitted at trial in the light most favorable to
the Commonwealth, there was sufficient evidence to establish beyond a
reasonable doubt that Appellant possessed the drugs located in the blue bag.
Accordingly, Appellant is not entitled to relief on this claim.
We next address Appellant’s issues concerning the court’s allowance of
testimony from Appellant’s state parole agents regarding Appellant’s parole
status. We consider these issues mindful of the following:
An appellate court may reverse a trial court’s ruling regarding
the admissibility of evidence only upon a showing that the trial
court abused its discretion. In determining the admissibility of
evidence, the trial court must decide whether the evidence is
relevant and, if so, whether its probative value outweighs its
prejudicial effect.
Commonwealth v. Matthews, 783 A.2d 338, 339–40 (Pa.Super. 2001)
(cleaned up).
According to Appellant, the trial court first erred by allowing the parole
agents to testify because they “directly implicated that Appellant had a prior
criminal offense.” Appellant’s brief at 13 (cleaned up). Secondly, Appellant
contends the court erred in allowing additional testimony regarding Appellant’s
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behavior while on supervision, i.e., his failure to report or notify agents of a
change in address when he absconded, because these technical parole
violations were not relevant or probative. Id. at 16-17. Appellant insists that
introduction of these prior bad acts was nothing more than an “attempt to
persuade the jury that the fact Appellant committed crimes and digressions in
his past . . . must mean he is guilty of these offenses.” Id. at 17.
Pennsylvania Rule of Evidence 404(b) provides as follows:
(1) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.
(3) Evidence of other crimes, wrongs, or acts proffered under
subsection (b)(2) of this rule may be admitted in a criminal case
only upon a showing that the probative value of the evidence
outweighs its potential for prejudice.
Pa.R.E. 404(b).
In Matthews, this Court considered the admissibility of testimony
identifying a witness as defendant’s parole officer as follows:
By informing the jury that DeSantis is Appellant’s parole officer,
the Commonwealth in effect told the jury that Appellant is a
convicted criminal; that Appellant’s criminal conviction was for an
offense serious enough that it resulted in incarceration (one can
only be on parole after a period of incarceration). When reviewed
in light of Pa.R.E. 404(b), this evidence presented by the
Commonwealth clearly constitutes evidence of other crimes
committed by Appellant.
Matthews, supra at 340.
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As in Matthews, the evidence that Appellant was on parole constituted
evidence of other crimes committed by Appellant. In support of admission,
the Commonwealth argued that Appellant’s abscondence from parole was
“highly relevant as to consciousness of guilt and flight thereafter and motive
as to why he ran.” N.T., 5/17/21-5/20/21, at 11. Finding that “flight is always
relevant,” the trial court allowed the testimony but cautioned the
Commonwealth not to elicit the crimes underlying Appellant’s parole. Id. at
13. In its opinion to this Court, the trial court elaborated:
Appellant’s abscondence from his parole address along with his
failure to report to his parole officer has potentially broader
implications as to Appellant’s continuing state of mind and
consciousness of guilt in the weeks and months after the night in
question. Therefore, we believe that the testimony regarding
Appellant’s abscondence from his parole address had substantial
probative value on its own, even considering the additional
evidence regarding Appellant’s flight from the Infiniti.
Trial Court Opinion, 11/8/21, at 15 (emphasis in original).
At trial, the Commonwealth cited Commonwealth v. Soto, 202 A.3d
80 (Pa.Super. 2018), in support of admission of this testimony. In Soto, this
Court found that two references to Soto’s parole status were “relevant to
explain his flight from the accident scene and show motive for his attempts to
avoid the police. Id. at 101 (citation omitted). In so concluding, we noted
that the references “were not so unfairly prejudicial as to outweigh the
relevance of the evidence.” Id. (footnote omitted). Appellant rejects this
argument raised by the Commonwealth, contending that the Commonwealth
could have sought a consciousness of guilt instruction based on Appellant’s
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attempt to avoid apprehension for the arrest warrant issued for the charges
herein. See Appellant’s brief at 15-16.
We find our decision in Commonwealth v. Santiago, 822 A.2d 716(Pa.Super. 2003) particularly instructive. Therein, Santiago had sought to
suppress evidence of his change in travel plans to leave the country as well
evidence that he failed to inform his parole officer of the change. The trial
court denied the motion to suppress evidence of his change in travel plans.
However, in balancing the probative value and potential for prejudice, the trial
court determined that the prejudicial impact of the parole evidence
outweighed its probative value, so the court granted that portion of Santiago’s
motion. On appeal to this Court, the Commonwealth argued that the trial
court erred in suppressing the parole evidence because Santiago’s failure to
inform his parole officer of the change constituted a parole violation and
showed a heightened consciousness of guilt and willingness to violate parole
to avoid apprehension. Id. at 727-28. Upon review, we agreed with the trial
court:
Initially, we note that the fact that Santiago changed his travel
plans without the permission of his parole officer does not fall
within one of the traditionally admissible categories [in Pa.R.E.
404(b)(2)]. Moreover, when a jury is informed that an accused is
on parole, they are being advised that the accused is a convicted
criminal and that the criminal conviction was for an offense serious
enough that it resulted in incarceration (since one can only be on
parole after a period of incarceration). Given the high prejudicial
value of this evidence balanced against its limited probative value,
we do not find that the trial court abused its discretion in limiting
this evidence to the plans of flight to show consciousness of guilt
and excluding reference to Santiago’s parole.
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Id. at 728–29 (cleaned up).
As observed by Appellant, the Commonwealth could have and did
introduce evidence of Appellant’s heightened and continued consciousness of
guilt beyond his initial fleeing from the Infiniti via evidence that he could not
be apprehended from the date of his arrest warrant in September 2019 until
June 2020. Adding on that Appellant also failed to (1) report to his parole
officer for that same period of time, (2) provide notice of his change in
address, or (3) relay the circumstances surrounding the incident to the officer
was of limited probative value given the highly prejudicial impact of informing
the jury that he was on parole.3
Nonetheless, we observe that Appellant may not be entitled to relief if
the error was harmless. “The harmless error doctrine, as adopted in
Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not
a perfect trial.” Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).
This Court will find harmless error if the certified record establishes that either:
(1) the error did not prejudice the defendant or the prejudice was
de minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
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3 We note that when evidence is admitted pursuant to Pa.R.E. 404(b)(2), “the
party against whom it is offered is entitled, upon request, to a limiting
instruction.” Pa.R.E. 404, Comment; see also Commonwealth v.
Hutchinson, 811 A.2d 556, 561 (Pa. 2002). Appellant’s trial counsel objected
to the admission of this evidence before trial but did not request a cautionary
instruction and the trial court did not provide one of its own volition.
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insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Hairston, 84 A.3d 657, 671–72 (Pa. 2014) (citations
omitted). We have cautioned that a finding under the third prong “is not to
be arrived at lightly. Accordingly, we have been reluctant to find an error
harmless on the basis of overwhelming evidence.” Rasheed, supra (cleaned
up). Finally, “the burden of establishing that the error is harmless beyond a
reasonable doubt rests upon the Commonwealth.” Id.
In the Commonwealth’s half-page argument, it fails to meet this burden
as it does not assert or even attempt to prove that any error in the admission
of the testimony was harmless. Instead, The Commonwealth contends that
the testimony was relevant to establish Appellant’s “continued state of mind
and consciousness of guilt[.]” Commonwealth’s brief at 4. Even assuming
the Commonwealth attempted to sustain its burden, we do not find any of the
three prongs satisfied herein. As discussed, the testimony was prejudicial.
Moreover, it was not cumulative of other untainted evidence. Finally, we
cannot conclude that “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.” Hairston, supra. Thus, the admission of this testimony was not
harmless error.
Therefore, we conclude that the trial court abused its discretion in
admitting testimony that Appellant was on parole in violation of Pa.R.E. 404(b)
and Appellant is entitled to a new trial. Accordingly, we vacate Appellant’s
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judgment of sentence and remand for a new trial. Given our resolution of
these issues, we do not reach Appellant’s weight challenge.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/15/2022
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