Com. v. Caldwell, F. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FALEEF AKEEM CALDWELL :
:
Appellant : No. 1595 EDA 2022
Appeal from the Judgment of Sentence Entered May 11, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000123-2015
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 5, 2023
Faleef Caldwell appeals the judgment of sentence imposed by the
Delaware County Court of Common Pleas after he was convicted of possession
with intent to distribute cocaine (“PWID”) and three counts of illegally
possessing a firearm in violation of 18 Pa. C.S.A. § 6105. The charges arose
after Caldwell’s parole agent found drugs and a shotgun in a basement
bedroom in the house with Caldwell’s approved parole plan address, and the
police subsequently uncovered more drugs, two more firearms and other
contraband in the room. Caldwell argues the evidence at trial was insufficient
to establish he had constructive possession of the drugs or the firearms. He
also argues the trial court abused its discretion by admitting hearsay
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* Former Justice specially assigned to the Superior Court.
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testimony from the parole agent, failing to grant a mistrial based on the parole
agent’s inadmissible testimony and failing to grant his motion for a new jury
panel. We affirm.
While on parole for a previous PWID conviction,1 Caldwell was assigned
a new parole officer, Agent Melissa Tammaro, in August 2014. On August 13,
2014, Agent Tammaro, along with two other parole officers, went
unannounced to 1239 Rainer Road in Brookhaven, Caldwell’s approved parole
plan address, to introduce herself to Caldwell. See N.T. Trial, 4/27/2022, at
227-228.2 3 Agent Tammaro knocked on the door, and an unidentified adult
female answered. See N.T., 4/27/2022, at 228. After Agent Tammaro
identified herself, she asked the female if Caldwell was home. The female
replied that Caldwell was home and in his bedroom. See id. She then led
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1 See CP-23-CR-0006704-2011.
2 The notes of testimony and the trial court opinion both spell the street name
of Caldwell’s approved parole plan address as “Raynor.” However, the record
is clear that the correct spelling of the street is “Rainer” and there is no dispute
about the actual address of the house. See, e.g., Special Conditions of Parole,
6/30/2014, at 1 (unpaginated) (listing Caldwell’s “approved residence located
at 1239 Rainer Road.”)
3 The record contains two separate notes of testimony from the trial on April
27, 2022. One entry contains notes of testimony from a pretrial hearing on
motions in limine, jury selection and Agent Tammaro’s testimony at trial, all
of which occurred on April 27, 2022. The other entry contains only the notes
of testimony from Agent Tammaro’s testimony. The page numbers for Agent
Tammaro’s testimony are different in each of the entries. We use the page
numbers from the first entry because the resolution of Caldwell’s issues
requires us to cite to the notes of testimony from the hearing on the motions
in limine, jury selection as well as Agent Tammaro’s testimony.
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Agent Tammaro to a room in the basement, but Caldwell was not there. See
id. at 230-231.
Agent Tammaro noted the room had a back door leading to the outside
of the house. See id. at 232. She also saw, in plain view, several shotgun
shells on the nightstand and a clear plastic bag containing an off-white
substance that she suspected to be cocaine on the bed. See id. The agents
searched the room to make sure Caldwell was not hiding there, and found a
shotgun under the bed. See id. at 233.
The agents called the police. The police obtained consent to search the
house from Caldwell’s mother, who was the owner of the house. See N.T.,
4/28/2022, at 6. The police searched the basement room and found, among
other things, a semi-automatic pistol, a revolving handgun, ammunition, over
200 small baggies, clear plastic vials, two digital scales, and two baggies of a
white, chalky substance. See id. at 10-14, 21. The police also found a
Pennsylvania state identification card belonging to Caldwell in the room, which
listed an address of 1239 Rainer Road. See id. at 15.
Caldwell was arrested and charged with PWID and three counts of
person prohibited from possessing firearms pursuant to Section 6105. He filed
a motion to suppress, which the court denied after a hearing. The case
ultimately proceeded to a jury trial.
Before trial began, Caldwell filed several motions in limine. One of those
motions was a “motion to preclude hearsay testimony of ‘unnamed female
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family member’,” who remained unidentified. Specifically, the motion sought
to preclude Agent Tammaro from testifying, as she did at Caldwell’s
suppression hearing, that the female who answered the door told Agent
Tammaro that Caldwell was in “his bedroom” and that Caldwell and his
girlfriend had just been in the bedroom. See Motion in Limine, 4/26/2022, at
1-2. The motion sought preclusion of these statements on the basis that they
constituted hearsay. See id. at 2.
The trial court heard arguments on the motion. It ruled Agent Tammaro
was permitted to testify that the unknown female told the agent that Caldwell
was home and led her to a room in the basement, for the purpose of showing
the history of the case and the effect on the listener, i.e. how Agent Tammaro
came to be in the basement of the house. The court ruled, however, that
Agent Tammaro could not testify that the female referred to that room as
Caldwell’s room. See N.T., 4/27/2022, at 8-9.
The parties also agreed to bifurcate the PWID charge from the Section
6105 charges. To that end, the parties agreed to submit the question to the
jury of whether Caldwell possessed firearms, but have the trial court decide
whether Caldwell had a prior conviction which made him ineligible to possess
a firearm pursuant to Section 6105.
At trial, the Commonwealth first called Agent Tammaro to the stand.
After Agent Tammaro testified an adult female answered the door when the
agent knocked at 1239 Rainer Road, the Commonwealth asked the agent if
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she had then been directed to a particular part of the house. Agent Tammaro
responded, “yes, this female family member led me inside the front door. She
told me he was in a room - in his room. I followed her to the basement.” N.T.,
4/27/2022, at 228.
Defense counsel requested a sidebar and asked for a mistrial given that
the agent’s testimony that she had been led to “his room” was inadmissible
under the motion in limine the trial court had just granted. The trial court
acknowledged the error but denied the motion for a mistrial on the basis that
it could cure the error with instructions to the jury. Agent Tammaro then
testified, without objection, that the female family member led her to a room
in the basement. See id. at 230-231. Agent Tammaro finished testifying, and
the jury was excused for the day.
The following morning, before testimony began, the court instructed the
jury to disregard Agent Tammaro’s statement that she had been directed to a
room belonging to Caldwell. See N.T., 4/28/2022, at 4. The Commonwealth
proceeded to present expert testimony that the drugs found in the bedroom
were possessed with the intent to deliver.
Defense counsel argued in his closing, in essence, that the
Commonwealth had failed to prove Caldwell possessed the contraband found
in the basement room because the Commonwealth had not established that
the room was Caldwell’s or even that Caldwell was living at the house.
Nonetheless, the jury convicted Caldwell of PWID and found that Caldwell
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possessed three firearms. Consistent with the parties’ stipulation, the trial
court then acted as fact-finder for purposes of determining whether Caldwell
had a prior conviction that made it illegal for him to possess those firearms
and found him guilty of all three counts of violating Section 6105.
On May 11, 2022, the trial court sentenced Caldwell to five to ten years’
imprisonment on the Section 6105 firearm offenses, and a concurrent
probationary term of twenty years for the PWID conviction. Caldwell filed an
untimely post-sentence motion on May 24, 2022, but filed a timely notice of
appeal on June 6, 2022. See Pa.R.Crim.P. 720 (A)(3) (providing that
defendants must file a notice of appeal within 30 days of the imposition of
sentence if they do not file a timely post-sentence motion). Both Caldwell and
the trial court complied with Pa.R.A.P. 1925. On appeal, Caldwell raises the
following four issues:
I. Was the evidence insufficient to support convictions for
[PWID] and [person prohibited from possessing a firearm in
violation of Section 6105] where [Caldwell] was not present
at the time of the search and the only evidence even
remotely suggestive of constructive possession of the
contraband found in one room of a multi-room house was
1) parole paperwork which showed that he had listed the
house in question as his address and 2) an identification
card that was found in the room with the contraband, given
that someone else’s similarly important personal documents
were found in the same room?
II. Did the trial court err in admitting testimony from
[Caldwell’s] parole agent that she was directed to a
particular basement bedroom after asking if [Caldwell] was
home because the testimony was inadmissible, implied
hearsay in that it contained the assertion that [Caldwell]
could be found in the bedroom and ownership of that
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bedroom and the items therein was the only issue in the
case?
III. Whether the trial court erred in denying [Caldwell’s] motion
for a mistrial where the parole agent violated the court’s
order not to introduce hearsay testimony that someone else
had told her that the room containing the contraband was
[Caldwell’s] room and constructive possession of the drugs
and gun was the only issue in the case?
IV. Did the trial court err in denying [Caldwell’s] motion for a
new jury panel where the trial court told the jury panel that
[Caldwell] was charged with being a person not to possess
[in violation of Section 6105] at the beginning of jury
selection despite an agreement to bifurcate the [Section
6105] charge?
Appellant’s Brief at 9-10 (suggested answers omitted).
Caldwell first argues the evidence was insufficient to support a finding
that he constructively possessed the drugs and firearms found in the
basement room, for purposes of both his PWID and his person prohibited from
possessing firearms charges. He argues, in essence, there was insufficient
evidence for the jury to conclude that he lived in the house, much less that he
lived in the basement bedroom of the multi-occupant house, and therefore
that he constructively possessed the contraband found in that room. This claim
fails.
The evidence presented at trial is sufficient when, viewed in the light
most favorable to the Commonwealth as the verdict winner, the evidence and
all reasonable inferences derived from the evidence are sufficient to establish
all of the elements of the offense beyond a reasonable doubt. See
Commonwealth v. Blakeney, 946 A.2d 645, 651 (Pa. 2008). The
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Commonwealth may sustain its burden entirely by circumstantial evidence.
See Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). Moreover,
the jury, which passes upon the weight and credibility of each witness’s
testimony, is free to believe all, part or none of the evidence. See id.To sustain Caldwell’s conviction for persons prohibited from possessing
a firearm, the Commonwealth had to prove Caldwell possessed a firearm and
that he had previously been convicted of one of 38 enumerated offenses which
made him ineligible to possess that firearm. See Commonwealth v. Miklos,
159 A.3d 962, 967 (Pa. Super. 2017); 18 Pa. C.S.A. § 6105(b). To sustain his
conviction for PWID, the Commonwealth had to prove Caldwell possessed a
controlled substance and that he had the intent to deliver the controlled
substance. See Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super.
2011).
As neither the firearms nor the drugs and paraphernalia were found
when Caldwell was present, the Commonwealth was required to prove
Caldwell had constructive possession of the firearms and other contraband.
See id. Constructive possession has been defined as the “ability and intent to
exercise control over the” contraband in question. Id. (citation omitted).
Constructive possession is “an inference arising from a set of facts that
possession of the contraband was more likely than not[,]” see
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013)(citation
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omitted), and may be established by the totality of the circumstances, see
Estepp, 17 A.3d at 944.
Here, the trial court found the evidence was sufficient to support the
jury’s finding that Caldwell constructively possessed the firearms and the
drugs. In support, the trial court noted Caldwell had listed his residence as
1239 Rainer Road for purposes of his approved parole plan address and that
when Agent Tammaro went to that address and asked the woman who
answered the door if Caldwell was home, she was directed to the basement
room, a room which contained all of the contraband found. Notably, the room
also contained a Pennsylvania state identification card for Caldwell listing his
address as 1239 Rainer Road. Taken together, the court found this evidence
was sufficient to establish Caldwell was in constructive possession of the
firearms and drugs.
Caldwell acknowledges his identification card was found in the basement
bedroom but claims this does not sufficiently connect him to the room because
the searching police officer found other personal documents - a social security
card and a birth certificate - in the room that the officer did not remember as
belonging to Caldwell. However, Caldwell clearly elicited these facts during his
cross-examination of the police officer who found the social security card and
the birth certificate. See N.T. 4/28/2023, at 25-27. As such, the jury was well
aware of these facts when considering whether Caldwell had constructive
possession of the drugs and the firearms found in the basement room.
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Moreover, as the Commonwealth points out, the discovery of the other
documents in the room does not negate the fact that Caldwell used the 1239
Rainer Road address as his approved residence in his parole paperwork, that
his parole officer was directed to the basement room after asking if Caldwell
was home, and that the police found Caldwell’s identification card and
contraband in the room to which they had been directed. We see no error in
the trial court’s conclusion that given the totality of these circumstances, it
was reasonable for the jury to infer that Caldwell constructively possessed the
contraband in question. See Hopkins, 67 A.3d at 820. No relief is due.
In his second claim, Caldwell argues the trial court abused its discretion
by allowing Agent Tammaro to testify that the female who answered the door
led her to a particular bedroom in the basement. He now alleges, for the first
time, that this was inadmissible because it was implied hearsay. We agree
with the Commonwealth that this issue is waived.
In the first place, Caldwell did not ask for this testimony regarding the
female’s actions to be excluded in his motion in limine. Instead, he asked that
Agent Tammaro be precluded from testifying she was told the basement
bedroom was Caldwell’s room and that he and his girlfriend had just been in
the bedroom. As the trial court found, it granted the motion in limine and
precluded Agent Tammaro from testifying about the female family member’s
statements identifying the basement room as belonging to Caldwell and that
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Caldwell and his girlfriend had just been in the room. See Trial Court Opinion,
8/30/2022, at 5.
The court also specifically noted that it had suggested at the hearing on
the motion in limine that the Commonwealth have Agent Tammaro testify
that, when she asked the female family member if Caldwell was home, the
female led her to a room in the basement, as this would avoid the concerns
with hearsay. See N.T. Hearing, 4/27/2022, at 7-9. Caldwell did not object at
that time.
In fact, Caldwell indicated he agreed that allowing the agent to testify
she had been directed to a basement bedroom would explain how she got to
be there without improperly implicating the rule against hearsay. See id. at
7. He also failed to object to this particular testimony by Agent Tammaro at
trial. See N.T., 4/27/2022, at 230, 231. As such, this issue is waived. See
Commonwealth v. Radecki, 180 A.3d 441, 455 (Pa. Super. 2018) (citations
omitted) (reiterating that in order to preserve an issue regarding the
admissibility of evidence, a party must make a timely and specific objection
to the challenged evidence, and, in fact, must object “at the earliest possible
stage” of the process to afford the trial court the opportunity to remedy any
error).
Further, as the Commonwealth points out, Caldwell is now arguing
Agent Tammaro’s testimony that the female who opened the door led her to
the basement room was inadmissible because it constituted “implied hearsay.”
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To that end, he maintains the unknown female’s actions of leading Agent
Tammaro to the basement bedroom implied that the room belonged to
Caldwell. Again as the Commonwealth points out, this is a new theory of
inadmissibility that Caldwell did not raise before the trial court. Instead, he
raises it for the first time on appeal. As such, we agree with the
Commonwealth that Caldwell’s “implied hearsay” claim is waived. See
Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super. 1996) (stating
that a defendant may not raise a new theory for an objection on appeal that
was not raised before the trial court).
In his third claim, Caldwell complains the trial court abused its discretion
by failing to grant his motion for a mistrial after Agent Tammaro testified she
was told Caldwell was in “his room” in direct contravention of the court’s order
granting the motion in limine. While we agree there was a violation of the
order, we also find, for the reasons explained below, that this claim ultimately
does not provide Caldwell with any basis for relief.
As noted above, in granting Caldwell’s motion in limine, the trial court
ruled that Agent Tammaro was not permitted to testify that the female who
answered the door told the agent that Caldwell was in his room. In light of
this ruling, after Agent Tammaro testified that an unknown female answered
the door, the Commonwealth asked Agent Tammaro “were you then directed
to a part of the house?” N.T., 4/27/2022, at 228. Rather than testifying she
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was directed to the basement, the agent replied: “she told me [Caldwell] was
in a room - in his room.” Id.There is no dispute this testimony violated the court’s pretrial ruling,
and Caldwell immediately moved for a mistrial on the basis of the testimony.
The court denied the motion for a mistrial, and Caldwell now claims this was
an abuse of the court’s discretion.
We review a trial court’s decision to deny a motion for a mistrial for an
abuse of discretion. See Commonwealth v. Wilson, 273 A.3d 13, 21 (Pa.
Super. 2022), denying petition for allowance of appeal, 285 A.3d 324 (Pa.
2022). A mistrial is an extreme remedy, and will be granted “only where the
incident upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict.” Id. (citation omitted), A
mistrial is not warranted where cautionary instructions are adequate to
overcome any prejudice to the defendant, and it is presumed that juries follow
the instructions of a trial court to disregard inadmissible evidence. See
Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000).
Here, the trial court denied Caldwell’s motion for a mistrial after
determining that an instruction to the jury would remedy the error. The
following morning, the court instructed the jury in a way “so as not to
unnecessarily highlight the issue.” Trial Court Opinion, 8/30/2022, at 7. The
court stated:
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All right, ladies and gentleman, before we get started with the
next witness, upon consideration last night and in slowing things
down, which I rarely do, I do need to advise you of something,
and it is as follows.
You must disregard Agent Tammaro’s testimony that the adult
female directed her to his, meaning [Caldwell’s], room. You may
only consider that Agent Tammaro was directed to a room.”
N.T., 4/28/2022, at 3-4.
In its Rule 1925 opinion, the trial court specifically reiterated its finding
that this instruction cured any potential prejudice from the erroneous
testimony, making a mistrial unnecessary.
Caldwell takes issue with this conclusion, and argues the cautionary
instruction given by the court did not cure the prejudice created by Agent
Tammaro’s improper testimony. In support, Caldwell relies on
Commonwealth v. Satzberg, 516 A.2d 758 (Pa. Super. 1986). There, the
defendant was charged with theft by unlawful taking and related offenses. In
opening remarks, the prosecutor stated the defendant “did nothing for two
and a half years except to do drugs.” Id. at 762. Defense counsel moved for
a mistrial, but the trial court denied the motion and allowed the prosecutor’s
statement to stand in light of the prosecutor’s representations that the
defendant was motivated to commit the charged crimes because of his drug
use. See id. When the evidence failed to establish this by the end of trial, the
trial court, in its closing charge, cautioned the jury to ignore any statements
about the defendant’s alleged drug use. See id. The defendant was convicted.
However, on appeal, this Court found the trial court should have granted a
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mistrial because the cautionary instruction did not cure the prejudice to the
defendant. See id. at 763.
We do not agree with Caldwell that he is entitled to relief based on
Satzberg. In the first place, the challenged statement in Satzberg was one
that came directly from the prosecutor. Here, Caldwell does not assert there
was prosecutorial misconduct and, in fact, the trial court specifically found that
the framing of the prosecutor’s question made it clear that the prosecutor was
following, or attempting to follow, the court’s pretrial order. In addition,
[T]he jury in Satzberg was permitted to contemplate the
prosecutor’s statement during the entire trial, as the statement
was made in opening argument and the trial judge only cautioned
the jury at the end of the trial after it became apparent that the
evidence did not support drug use as a motive. [This] Court
believed that this tainted the entire trial to a point where a
cautionary instruction in the closing charge would be ineffectual.
Simpson, 754 A.2d at 1273.
In contrast, here, the trial court instructed the jury first thing on the day
of trial following Agent Tammaro’s testimony, and told the jury it was to
disregard the impermissible testimony. As such, the jury in this case, unlike
the jury in Satzberg, was not left with the opportunity to contemplate the
inadmissible testimony throughout the entire trial. Instead, after Agent
Tammaro testified, and before any testimony by the next witness was
presented, the trial court instructed the jury in no uncertain terms that the
jury was to disregard the improper statement made by Agent Tammaro. Our
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case law is clear that juries are presumed to follow such instructions. See
Simpson, 754 A.2d at 1272.
In the end, we are not persuaded the trial court abused its discretion in
concluding that its instruction remedied any prejudice from the agent’s
improper testimony and therefore, that a mistrial was not warranted.
In his fourth and final issue, Caldwell argues the trial court abused its
discretion by denying his motion for a new jury panel after the trial court told
the jury panel that Caldwell had been charged with “person not to possess a
firearm.” N.T., 4/27/2022, at 27.4 He claims the court’s actions “un[did] the
bifurcation of the § 6105 from the PWID charge that [the court] had already
ordered.” Appellant’s Brief at 36. This claim also fails.
In rejecting this claim, the trial court explained that it had
uttered a[n] “isolated, passing reference” to a prior offense when
it advised the jury panel that [Caldwell] was charged with the
offense of Person Not to Possess a Firearm. The court did not
elaborate upon this, nor was the phrase raised again. Instead, to
ensure the jury pool was not tainted by this phraseology, the court
inquired of twelve potential jurors during individual voir dire
asking for their understanding of [Caldwell’s] charges. Not one
juror indicated an understanding that the charge of Possession of
Firearms Prohibited required that [Caldwell] had been convicted
of a prior offense. The potential jurors stated they believed the
charges were [:] “intent to give a firearm to someone else;” “[did
not have a permit or license] to possess a firearm;” “illegal
possession of weapon;” “selling guns without a license or
something;” charged with [supposedly] having a firearm;” and
“illegally discharg[ing] a gun,” among others. It is clear that, even
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4We note that Caldwell did not cite to the place in the record where this
occurred, as is his burden to do pursuant to Pa.R.A.P. 2119(c).
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if the court did err in its statement to the jury, the error did not
taint the jury pool and was harmless.
Trial Court Opinion, 8/30/2022, at 11 (citations to notes of testimony
omitted).
Even had the jury understood from the court’s mere recitation of the
charge that the Commonwealth could only convict a person charged with
“person not to possess a firearm” if the person had a previous conviction that
made it ineligible for him to possess a firearm, we still would not find any
undue prejudice. The court did not mention any particular, previous offense
of which Caldwell had been convicted, much less elaborate or present any
evidence of that conviction. Rather, it made an isolated remark during its
lengthy opening charge to the jury that Caldwell had been charged with
“person not to possess a firearm.” Given these circumstances, we fail to see
any error in the trial court’s conclusion that Caldwell has not established he
was prejudiced by the court’s statement. See Commonwealth v. Miller, 481
A.2d 1221, 1222 (Pa. Super. 1984) (stating that a witness’s isolated and
passing reference to a defendant’s prior criminal activity, which did not give
details of a prior offense, did not entitle the defendant to relief).
Because none of Caldwell’s claims merit relief, we affirm his judgment
of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2023
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