Com. v. Collins, V. ( 2023 )

J-S33020-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR FULTON COLLINS JR. :
:
Appellant : No. 440 WDA 2023
Appeal from the Judgment of Sentence Entered December 16, 2022
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001378-2021
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 8, 2023
Victor Fulton Collins, Jr. (Appellant) appeals from the judgment of
sentence imposed in the Beaver County Court of Common Pleas following his
jury conviction of possession of controlled substances (fentanyl) and
possession with intent to deliver (PWID) controlled substances (fentanyl).1
Appellant raises five issues on appeal challenging the denial of his pretrial
suppression motion, the weight and sufficiency of the evidence supporting his
convictions, trial court rulings concerning testimony regarding a “hand to hand
transaction” and the Commonwealth’s expert witness, and the court’s denial
of his motion for extraordinary relief based on an inconsistent verdict. For
the reasons below, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 See 35 P.S. §§ 780-113(a)(16), (30).
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In the early morning hours of May 15, 2021, Appellant was arrested
after New Brighton police officers recovered drugs from the floor of the
passenger seat in a car in which he was the passenger. He was subsequently
charged with PWID (fentanyl), possession of controlled substances (fentanyl)
and possession of drug paraphernalia.2
On December 15, 2021, Appellant filed an omnibus pretrial motion
seeking, inter alia, suppression of the evidence recovered from the car stop,
which he argued was not supported by reasonable suspicion. See Appellant’s
Omnibus Pre-Trial Motion, 12/15/21, at 4-5 (unpaginated). The suppression
court3 conducted a hearing on June 8, 2022, at which time the Commonwealth
presented the testimony of New Brighton Police Officer Jeremy Conley.4
Officer Conley testified that on May 15, 2021, he was positioned in his
patrol vehicle in the 500 block of Eighth Avenue in New Brighton, “monitoring”
the 600 block of Seventh Avenue, because the police “had been receiving
complaints about . . . drug trafficking” in that area. N.T., Supp. Hrg., 6/8/22,
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2 See 35 P.S. § 780-113(a)(32).
3 President Judge Richard Mancini conducted the suppression hearing, and
Judge Kim Tesla presided over the subsequent jury trial.
4 We summarize the suppression hearing testimony in detail because Appellant
challenges the suppression court’s ruling, and “[o]ur scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing.” Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa.
Super. 2021) (citations omitted).
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at 11.5 In addition to his duties as a New Brighton police officer, Officer Conley
explained that he was a member of the Attorney General’s drug task force,
and, as such, had been involved in numerous narcotics investigations. See
id. at 10.
During his surveillance, Officer Conley observed Appellant, whom he
recognized “[f]rom prior incidents over [his] eight year career[,]”6 walking
towards another male. N.T., Supp. Hrg., at 12. He stated:
I observed [Appellant] approach . . . another male. They walked
up to each other. I seen a hand-to-hand exchange, and then they
both immediately walked separate ways.
Id. Officer Conley agreed the “hand-to-hand” exchange he observed was
“[p]retty much identical” to those he had seen as a member of the drug task
force. Id.
Officer Conley then drove from his surveillance position to the area
where the transaction occurred and saw Appellant walking “into the dead end
of 7th Street off of Seventh Avenue.” See N.T., Supp. Hrg., at 14-15. As the
officer approached, a vehicle emerged from the dead-end street with Appellant
as the passenger. Id. at 16. Officer Conley drove around the block, pulled
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5 The reference to “March 15, 2021” in the hearing transcript appears to be
a typographical error. See id. at 11 (emphasis added).
6 At one point, the Commonwealth’s attorney asked the officer how he knew
Appellant. See N.T., Supp. Hrg., at 13. Officer Conley answered, “He’s a
known drug trafficker.” Id. Appellant’s counsel immediately objected, and
the suppression court sustained the objection. Therefore, we do not consider
that testimony in our analysis.
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up behind the vehicle, and initiated a traffic stop. Id. As the vehicle was
pulling over, the officer saw Appellant “immediately” make “furtive
movements, bending forward.” Id. at 17.
Officer Conley called for backup, and two additional officers arrived
shortly thereafter. See N.T., Supp. Hrg., at 17. While Officer Conley was
speaking to the driver, who was identified as Jason Walzer, Appellant,
unprompted, “leaned over and said, ‘I was just getting a ride to my dad’s
house.’” Id. at 17-18.
Officer Conley subsequently removed Appellant from the vehicle. See
N.T., Supp. Hrg., at 19. While he was conducting a pat-down search, another
officer “observed on the floorboard where [Appellant’s] feet were a plastic bag
that contained stamp bags.” Id. Officer Conley placed Appellant in handcuffs
and obtained Mr. Walzer’s consent to search the vehicle. See id. at 18-19.
In addition to the stamp bags, the search revealed a scale under the front
passenger seat (where Appellant had been sitting), and glass crack pipe in the
glove compartment, which Mr. Walzer admitted was his.7 See id. at 19, 21-
22. Officer Conley searched Appellant incident to his arrest and recovered,
inter alia, $1,848.00 in cash. Id. at 21. Although his field test of one of the
stamp bags was “positive for the presence of heroin and fentanyl[,]” later lab
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7 Mr. Walzer also had another crack pipe on his person. N.T., Supp. Hrg., at
22.
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results confirmed only the presence of “fluorofentanyl[,] a Schedule I
controlled substance.” Id. at 20-21.
Under cross-examination, Officer Conley acknowledged that he did not
see any items change hands during the initial hand-to-hand street exchange
between Appellant and the other male. See N.T., Supp. Hrg., at 26-27. He
commented, however, that “[d]rugs can be so small that they can be
concealed and exchanged in a handshake.” Id. at 26.
At the conclusion of the hearing, the suppression court took the motion
under advisement, and, on July 19, 2022, entered an order and accompanying
opinion denying Appellant’s motion to suppress.8 See Order, 7/19/22. The
case proceeded to a jury trial commencing on November 14, 2022.
At trial, Officer Conley recounted the events leading to Appellant’s arrest
and provided testimony substantially similar to his testimony at the
suppression hearing. However, his trial testimony included the following
details: (1) the digital scale recovered under the front passenger seat was
not “shoved . . . towards the back[,]” but rather, “right at the front underneath
the seat[;]” (2) the baggie recovered from the passenger floorboard contained
“three different groups of little baggies with a [rubber band] around them. . .
along with numerous empty stamp bags[;]” and (3) the lab report indicated
that one group of baggies, “labeled Mercedes,” contained fluorofentanyl, but
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8 The order and opinion also denied a motion for habeas corpus, which is not
relevant to this appeal.
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another group of baggies contained no controlled substances. See N.T. Jury
Trial, 11/15/22, at 69, 70, 97-98. The Commonwealth also presented a
stipulation regarding the state crime lab report. See id. at 94. The report
indicated that the “net weight” of the drugs recovered was “0.14 grams, plus
or minus 0.1 gram, and one of those bags was confirmed to contain 0.025
grams, plus or minus 0.003 grams fluorofentanyl.” Id. at 96.
The Commonwealth also called Center Township Police Detective Aldo
Legge to testify as an expert witness.9 Detective Legge stated that he is a
29-year veteran officer with the Center Township Police, and has extensive
experience in narcotics investigations through his work with the Beaver
County Drug Task Force, the High Intensity Drug Trafficking Area (HIDTA)
task force, and the FBI Transactional Organized Crime Task Force. See N.T.,
11/15/22, at 184-85. He estimated that he had been conducting narcotics
investigations “[a]lmost the entirety of [his] career [or] at least 25 years.”
Id. at 185-86. Detective Legge described his training and continuing
education in that field. See id. at 186-87, 189. He stated that he had testified
as an expert in drug trafficking on one prior occasion, in August of 2022. See
id. at 189.
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9 In addition, the Commonwealth presented testimony from the two New
Brighton police officers who responded to the scene to assist Officer Conley ─
Officers Jonathon Pisano and Donald Dobson. See N.T., 11/15/22, at 149-
72.
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In cross-examining Detective Legge regarding his qualifications,
Appellant’s counsel focused on the fact that he had only been an expert on
one prior occasion and he offered his opinion in that case on behalf of the
Commonwealth. See N.T., 11/15/22, at 191-93. Thereafter, the trial court
accepted Detective Legge as an “expert witness in the area of drug
trafficking.” Id. at 193. Appellant made no objection. See id.
The trial court summarized Detective Legge’s expert testimony as
follows:
Detective Legge testified that when conducting investigations into
potential narcotic distribution schemes, drug task forces look for
certain paraphernalia, such as plastic bags, envelopes, paper
wrapping, duct tape, packing tape, certain kinds of packages, and
small scales for weighing drugs. Detective Legge concluded that
[Appellant] possessed the fentanyl, digital scale, and plastic
stamp bags with the intent to sell fentanyl. He stated that drug
dealers use digital scales like the one found in this case to package
specific amounts of the narcotics they intend to sell. He also
shared his professional knowledge that drug dealers often
package their product in plastic stamp bags, much like the ones
found on the floor in the front of the passenger’s seat in this case.
Detective Legge . . . noted that stamp bags used for the sale
of narcotics typically have a brand on them to denote the potency
of the drugs contained in the bag, like the stamp bags marked
with the Mercedes logo found near [Appellant]. According to the
detective, one stamp bag’s worth of narcotics would be worth
somewhere between $7-10. He also [opined] that the
denominations of the currency found on [Appellant’s] person
indicated his involvement in distributing controlled substances.
Detective Legge . . . testified that it is unusual for a personal drug
user to have over $1,000 in cash on their person. Further, a drug
user would typically have some sort of paraphernalia that they
would use to introduce the substance into their body, such as a
syringe in the case of heroin or fentanyl.
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On cross-examination, [Appellant’s c]ounsel brought out
several alleged errors in Detective Legge’s report[, including the
fact that the] report . . . stated the wrong numerical amount as
the net weight of the seven stamp bags with the Mercedes logo
that were tested at the laboratory. According to the laboratory
report, the net weight of those seven stamp bags was 0.14 grams,
but Detective Legge’s report stated that the net weight of the
stamp bags was 0.175 grams. Detective Legge acknowledged this
mistake, but he still held to his conclusion that the net weight
stated in the lab report demonstrates an intent to deliver the
narcotics.
[Appellant’s c]ounsel observed that, given this net weight of
the contents of the baggies with the Mercedes logo on them,
combined with the fact contained in Detective Legge’s expert
report that one gram of fentanyl is worth at least $150, the total
value of the fentanyl contained in the baggies found . . . in the
vehicle at [Appellant’s] feet . . . was worth between $21-35. Since
the laboratory only confirmed that one bag weighing 0.02 grams
contained fentanyl, [Appellant’s c]ounsel concluded that this bag
contained about $3-5 worth of fentanyl. Finally, [Appellant’s
c]ounsel questioned Detective Legge’s opinions deriving from the
fact that [Appellant] had small denominations of currency on his
person, since law enforcement might find either large or small bills
suspicious. . . . [Appellant’s c]ounsel also brought out the fact that
the digital scale found [under the passenger seat] was not sent to
the laboratory for testing.
Trial Ct. Op., 5/11/23, at 8-9 (record citations omitted; some paragraph
breaks added).
On November 17, 2022, the jury returned a verdict of guilty on the
charges of PWID and possession of controlled substances, but not guilty on
the charge of possession of drug paraphernalia. Appellant’s sentencing
hearing was conducted on December 16, 2022. At that time, Appellant’s
counsel presented an oral motion for extraordinary relief seeking an arrest of
judgment, judgment of acquittal, or a new trial. See N.T. Sentencing H’rg,
12/16/22, at 9-10. Counsel argued the drug evidence should have been
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suppressed and the jury’s verdict was inconsistent. See id. at 10-20. The
trial court denied the motion and proceeded to sentence Appellant to a term
of 33 to 120 months’ incarceration followed by five years’ probation for PWID;
his remaining conviction merged for sentencing purposes. See id. at 20, 63-
64.
Appellant filed a timely post-sentence motion, challenging the
sufficiency and weight of the evidence, and arguing the verdict was
inconsistent. See Appellant’s Motion for Post-Sentence Relief, 12/23/22, at
1-2 (unpaginated). Appellant also requested transcription of the trial
transcript, and permission to filed supplemental post-sentence motions after
review. See id. at 2. The trial court later granted Appellant until February
16, 2023, to file supplemental post-sentence motions. See Order, 1/26/23,
at 1 (unpaginated). Appellant filed a supplemental motion on that date,
challenging the trial court’s rulings permitting Officer Conley to testify
regarding the “‘hand to hand’ interaction that he observed on the date in
question[,]” and permitting Detective Legge to testify as an expert witness.
See Appellant’s Supplemental Motion for Post-Sentence Relief, 2/16/23, at 2
(unpaginated). The trial court conducted oral argument on March 10, 2023,
and denied Appellant’s motions on March 21st. This timely appeal follows.10
Appellant presents the following six issues for our review:
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10 Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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[1] Whether the trial court erred in denying . . . Appellant’s pre-
trial motion to suppress on July 19, 2022[?] . . .
[2] Whether the trial court erred in permitting [Officer Conley] to
testify at trial as to the “hand to hand” interaction that he
observed on the date in question[?] . . .
[3] Whether the trial court erred in permitting the Commonwealth
to present [its] last witness in [its] case-in-chief as an expert[?] .
..
[4] Whether the trial court erred in not granting extraordinary
relief [because] the jury verdict should have been set aside for
being inconsistent, in that, the jury acquitted Appellant of the
possession of drug paraphernalia count[?]
[5] Whether the Commonwealth presented sufficient evidence to
prove the elements of the underlying drug offenses[?]
[6] Whether the jury’s verdict was against the weight of the
evidence presented by the Commonwealth at trial[?]
Appellant’s Brief at 3-4 (some capitalization omitted).
In his first issue, Appellant contends Officer Conley had no reasonable
basis to conduct the vehicle stop, and, therefore, the suppression court erred
when it denied his motion to suppress the evidence recovered as a result of
that stop. See Appellant’s Brief at 11. He argues that although the officer’s
purported basis for the stop was a hand-to-hand narcotics exchange, Officer
Conley conceded “he was unable to see any object ‘change hands’ between
the two people.” Id. at 12. Relying on several decisions of this Court,
Appellant insists that Officer Conley was “operating on a hunch[,]” which was
insufficient to establish the requisite reasonable suspicion that Appellant was
engaged in the sale of narcotics necessary to support the vehicle stop. See
id. at 13-16.
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Our review of a pretrial order denying a motion to suppress is guided by
the following:
Our standard of review . . . requires us to consider only the
Commonwealth’s evidence and so much of the defense’s evidence
as remains uncontradicted when read in the context of the record
as a whole. Where the record supports the suppression court’s
factual findings, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, . . . where the appeal turns on allegations of legal error,
the suppression court’s conclusions of law are not binding as it is
this Court’s duty to determine if the suppression court properly
applied the law to the facts. As such, the legal conclusions of the
lower courts are subject to our plenary review.
Commonwealth v. Dunkins, 263 A.3d 247, 252 (Pa. 2021), cert. denied
sub nom. Dunkins v. Pennsylvania, 142 S. Ct. 1679 (U.S. 2022).
Moreover, our scope of review is limited to the evidence presented at the
suppression hearing. See Tillery, 249 A.3d at 280.
To justify an investigatory stop of a vehicle, police officers must possess
reasonable suspicion of criminal activity. Commonwealth v. Knupp, 290
A.3d 759, 767 (Pa. Super. 2023). See also Commonwealth v. Adams, 205
A.3d 1195, 1201 (Pa. 2019) (“[A] traffic stop is an investigative detention that
itself requires reasonable suspicion or probable cause.”). “
In reviewing whether reasonable suspicion . . . exists, we must .
. . examine the totality of the circumstances to determine whether
there exists a particularized and objective basis for suspecting an
individual [ ] of criminal activity. Even innocent factors, viewed
together, may arouse suspicion that criminal activity is afoot.
Knupp, 290 A.3d 767 (citations & quotation marks omitted). As our Supreme
Court has explained:
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[A]n investigative detention is constitutionally permissible if an
officer identifies specific and articulable facts that led the officer
to believe that criminal activity was afoot, considered in light of
the officer’s training and experience. [I]n determining whether
the officer acted reasonably . . ., due weight must be given, not
to his inchoate and unparticularized suspicion or hunch, but to the
specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.
Adams, 205 A.3d at 1205 (citations & quotation marks omitted; emphasis
added).
Here, based on the totality of the circumstances, the suppression court
concluded Officer Conley possessed the requisite reasonable suspicion to stop
the vehicle in which Appellant was a passenger and briefly detain him. See
Supp. Ct. Op. at 8. The court opined:
[W]here an experienced narcotics officer, who was monitoring a
specific block late at night due to reports of drug activity, observes
a man, known to him[11] . . . , walk up to another male and conduct
a hand-to-hand exchange[, after which,] both individuals
immediately part ways, under the totality of the circumstances,
[the officer] had sufficient reasonable suspicion supported by
articulable facts to briefly detain [Appellant], regardless of the fact
that the officer could not identify the object that was exchanged
between the individuals.
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11 We note the suppression court stated that Appellant was known to Officer
Conley “to distribute narcotics[.]” See Supp. Ct. Op. at 8. However, as noted
supra, the trial court sustained an objection to this testimony during the
suppression hearing. See N.T., Supp. H’rg, at 13-14. Thus, we do not
consider that fact in our analysis.
Nevertheless, Appellant did not object when Officer Conley testified that
he recognized Appellant “[f]rom prior incidents over [his] eight year career[,]”
and that Appellant was “known to [him.]” N.T., Supp. H’rg, at 12.
Accordingly, the fact that Officer Conley knew Appellant based upon past
police interactions is a relevant factor in our analysis.
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Id. at 8.
Upon review, we detect no basis to disturb the suppression court’s
ruling. First, Officer Conley, as a member of the Attorney General’s drug task
force, was very experienced in narcotics transactions, and particularly “hand-
to-hand” exchanges. See N.T., Supp. H’rg, at 10-11. He explained that he
was monitoring the 600 block of Seventh Avenue ─ where he witnessed
Appellant’s interaction with the other male ─ because the police department
“had been receiving complaints about . . . drug trafficking” in that very area.
Id. at 11. Officer Conley observed Appellant ─ whom he knew from “prior
incidents” with police ─ approach another man, conduct a “hand-to-hand
exchange, and then . . . both immediately walk[ ] separate ways.” Id. at 12.
Although he did not see any objects change hands, Officer Conley agreed that
the exchange he witnessed was “[p]retty much identical” to the hand-to-hand
exchanges he observed as a member of the drug task force. Id. at 12, 26-
27. He also explained that “[d]rugs can be so small that they can be concealed
and exchanged in a handshake.” Id. at 26.
We conclude this Court’s decision in Commonwealth v. Clemens, 66
A.3d 373 (Pa. Super. 2013), is instructive. In that case, a police officer was
on routine patrol in a “very high in crime and very violent” neighborhood,
which the officer had patrolled for five years. Id. at 375 (record citation &
quotation marks omitted). The officer testified he was “personally aware of .
. . nonstop open-air narcotics sales” in the area. Id. (record citation &
quotation marks omitted). While driving down a block at mid-morning, the
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officer observed the defendant engage in a “hand-to-hand transaction with an
unknown male.” Id. at 376 (record citation omitted). Similar to the case
before us, the officer acknowledged he “did not observe money or objects pass
between the two individuals, [but] testified that ─ based upon his training and
years of experience ─ he was of the conviction that he had just witnessed a
narcotics transaction.” Id. After the exchange, the defendant looked “directly
at the marked police vehicle” and ran to the porch of a nearby house, and
pretended like he was reading a newspaper. Id. (record citation omitted).
The officer approached and asked the defendant if he lived at that address
and if he had any identification. See id. The defendant responded no to both
questions. See id. The officer then asked the defendant to stand up so he
could pat him down for safety reason, and, when he stood up and spread his
legs, a baggie of suspected narcotics fell from his pants. Id. at 376-77.
The defendant was arrested and later filed a suppression motion,
asserting, inter alia, the officer had no reasonable suspicion to conduct an
investigatory detention. Clemens, 66 A.3d at 377. The trial court denied the
motion, and a panel of this Court affirmed on appeal. See id. at 377, 380-
81. The Clemens panel emphasized the following facts: (1) although he did
not see any items or money exchanged, the officer testified that “based upon
his experience and training, he witnessed [the defendant] engage in a hand-
to-hand narcotics transaction[;]” (2) the officer was “extremely familiar” with
the area ─ which was “home to nonstop open-air narcotics sales” ─ and
“extremely experienced in narcotics investigations[;]” and (3) after the
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defendant saw the marked vehicle, he “suspiciously ran onto the porch” of a
nearby residence and “pretended to read a newspaper.” Id. at 380 (quotation
marks omitted). The Court concluded:
Given these “specific and articulable facts,” we agree that
“an objectively reasonable police officer would have reasonably
suspected” that [the defendant] had sold narcotics to the
unidentified man. As such, we agree that the investigatory
detention was properly supported by reasonable suspicion.
Id.The facts in the present case are very similar to those in Clemens.
Officer Conley, who was experienced in narcotics investigations, observed
what he believed to be a hand-to-hand exchange between Appellant ─ whom
he knew from prior encounters with police ─ and an unidentified male in an
area where he was conducting surveillance based upon specific complaints of
drug trafficking. Although Appellant did not see Officer Conley, like the
defendant in Clemens, he did proceed immediately to a dead-end street and
enter a vehicle parked therein. We conclude that, under the totality of the
circumstances, Officer Conley had the requisite reasonable suspicion to
conduct an investigatory detention of Appellant and did so by conducting a
traffic stop.
Moreover, the cases upon which Appellant relies do not compel a
different result. In Commonwealth v. Carter, 779 A.2d 591 (Pa. Super.
2001), an officer was on “general patrol” in his marked vehicle in a high drug
and crime area of Pittsburgh. See id. at 592. Mid-afternoon, the officer
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observed the defendant walk towards a parked pick-up truck and being
conversing with the occupants. Id. The defendant placed his left hand in his
jacket and began to remove it when he looked in the direction of the officer
and “mouthed the word ‘popo’ (meaning police).” Id. The officer pulled in
front of the truck and recognized one of the occupants as a known drug user.
Id. At that point, the defendant began to walk away, and the officer asked to
speak with him. Id. During the conversation, the officer told the defendant
to put his hand in his pocket, but then “went for his side arm and asked [the
defendant] to show his hands.” Id. The defendant displayed a baggie of
drugs and began to flee. See id. He was subsequently apprehended and
arrested. Id.The defendant filed a pretrial motion to suppress, which the trial court
granted. See Carter, 779 A.2d at 592. On appeal by the Commonwealth, a
panel of this Court affirmed. See id. at 595. Relevant herein, the panel
concluded that the officer’s observations “could not have given rise to a
reasonable suspicion that [the defendant] was engaged in criminal activity.”
Id. at 594. The panel explained that while the officer saw the defendant put
his hand in his pocket as he spoke to the occupants of a car in a “notoriously
drug infested area of the city[,]” he did not see the exchange of any items, or
observe any furtive movement. Id. at 594-95. Thus, the Carter Court
determined that while the officer may have had an “educated hunch” that a
drug deal was imminent, the facts presented were “insufficient to create a
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reasonable suspicion that [the defendant] was engaged in the sale of illegal
narcotics on the date in question.” Id. at 595.
Appellant insists that, in the present case, Officer Conley was similarly
“operating on a hunch[.]” See Appellant’s Brief at 14-15. We disagree. Here,
Officer Conley was conducting surveillance based upon specific “complaints
about . . . drug trafficking” in the area where the hand-to-hand interaction
occurred. See N.T., Supp. H’rg, at 11. He saw Appellant, whom he recognized
from “prior incidents” with police, walk up to another man and engage in what
he described as a “hand-to-hand exchange” after which both men immediately
walked “separate ways”. See id. at 12. Officer Conley agreed that the
transaction he witnessed was “[p]retty much identical” to the hand-to hand
narcotics exchanges he observed during his work with the drug task force.
Id. Moreover, while he acknowledged he did not see any items change hands,
he noted that “[d]rugs can be so small that they can be concealed and
exchanged in a handshake.” Id. at 26. Accordingly, Officer Conley’s
experience, particularly with the type of interaction he witnessed,
distinguishes this case from the facts in Carter.
Appellant also relies upon this Court’s unpublished decision in
Commonwealth v. Almanzar, 1463 EDA 2019 (unpub. memo. at 14) (Pa.
Super. 2020),12 in which a panel of this Court concluded officers did not
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12Unpublished, non-precedential decisions of this Court “filed after May 1,
2019 . . . may be cited for their persuasive value.” Pa.R.A.P. 126(b)(1)-(2).
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possess probable cause to stop and search the defendant’s vehicle after
observing him and his co-defendant “conduct[ ] one, daytime, trunk-to-trunk
transfer of a bag.” Acting on “complaints about several Hispanic men entering
and exiting [a] property while carrying packages[,]” officers conducted
surveillance at the property on May 22, 2017. Id. at 1-2. Although they
observed several men exiting and entering the property and various vehicles,
exchanging unidentified items, the officers did not observe either the
defendant or his co-defendant that day. Id. at 2-3.
When they conducted additional surveillance two days later, on May
24th, officers witnessed the defendant arrive in his vehicle and back up to a
Jeep, so that the trunks of the two vehicles were facing each other. See
Almanzar, 1463 EDA 2019 (unpub. memo. at 3). The Jeep was one of the
vehicles involved in the transactions on May 22nd. See id. at 2. At that time,
the co-defendant “retrieved a large, green bag from the trunk of the Jeep and
transferred in into the trunk” of the defendant’s vehicle. Id. at 3. When the
defendant drove off, officers stopped him and searched his trunk, where they
found “1,150 bundles of heroin inside the green bag.” Id.
After his arrest, the defendant filed a motion to suppress the evidence
recovered from the warrantless vehicle search. Almanzar, 1463 EDA 2019
(unpub. memo. at 4). The trial court granted the motion, finding the evidence
was insufficient to establish probable cause for the vehicle stop. Id. at 6.
Despite the fact that the investigating officer stated he “had seen drug dealers
park in a trunk-to-trunk’ formation to transfer contraband” in the past, and
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that the defendant’s vehicle had been involved in a “prior drug
investigation[,]”13 the trial court concluded:
Applying a totality of the circumstances test, the [c]ourt did not
find that the single, midday transfer of a bag, whose contents
were unknown, from the trunk of one car to another between two
unidentified individuals provided officers with probable cause to
search the vehicle Appellee was driving.
Id. at 14 (citation omitted & emphasis added). The trial court further
recognized that during surveillance two days prior, officers “observed separate
encounters that involved no money, but only the transfer of a box of diaper
and an object[, which lacked] specificity to determine whether drugs were
actually being moved[.]” Id. at 13-14 (citation & quotation marks omitted).
As noted supra, a panel of this Court affirmed on appeal.
Appellant maintains that, like the officers in Almanzar, Officer Conley
“did not observe any items of contraband being exchanged, nor could he
articulate any facts that would demonstrate criminal activity was afoot[;
rather,] the activities of [ ] Appellant were ordinary or innocuous.” Appellant’s
Brief at 15. For the reasons discussed above, we disagree. Moreover, we
emphasize that the Almanzar Court considered whether the facts supported
a finding of probable cause, not reasonable suspicion. It is well-settled that
“[r]easonable suspicion is a less stringent standard than probable cause
necessary to effectuate a warrantless arrest[.]” Commonwealth v. Brown,
996 A.2d 473, 477 (Pa. 2010) (emphasis added). See also Commonwealth
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13 Almanzar, 1463 EDA 2019 (unpub. memo. at 13).
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v. Jackson, 302 A.3d 737, 748 (Pa. 2023) (“[R]easonable suspicion requires
more than a mere hunch but considerably less than proof of wrongdoing by a
preponderance of the evidence, and obviously less than is necessary for
probable cause.”) (citations & quotation marks omitted). Thus, for that reason
alone, Almanzar is distinguishable. Accordingly, we conclude Appellant’s first
claim fails.
We address Appellant’s remaining issues together. In his second claim,
Appellant argues the trial court erred when it permitted Officer Conley to
testify regarding the “hand to hand” exchange he witnessed which precipitated
the vehicle stop.14 See Appellant’s Brief at 17. Appellant maintains there was
no “foundation” for the testimony since Officer Conely admitted he did not see
any items exchanged between the two men. See id. at 18. Moreover,
although the court sustained his objection and issued a cautionary instruction,
Appellant insists the jury was prejudiced by the testimony because they
submitted a question to the court concerning how they were to consider the
“hand-to-hand” interaction in their deliberations. See id.
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14 “[T]he admissibility of evidence is a matter solely within the discretion of
the trial court[, and t]his Court will reverse an evidentiary ruling only where
a clear abuse of discretion occurs.” Commonwealth v. Woeber, 174 A.3d
1096, 1100 (Pa. Super. 2017) (citation omitted).
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Third, Appellant insists his conviction should be set aside due to the
jury’s inconsistent verdict.15 See Appellant’s Brief at 20. Because the jury
acquitted him of the possession of drug paraphernalia charge, that was based
on the scale recovered from under his seat, Appellant argues the jury could
not have convicted him of PWID, when the Commonwealth’s expert considered
his possession of the scale as critical evidence of his intent to deliver the drugs.
See id.In his fourth claim, Appellant contends “the Commonwealth did not lay
a proper foundation to establish” Detective Legge was an expert witness.16
Appellant’s Brief at 19. He emphasizes it was only the second time the
detective was recognized as an expert, and that he “clearly had a bias in favor
of the Commonwealth.” Id. Moreover, Appellant argues Detective Legge’s
opinions should not have been admitted because the “phraseology” he used
in his expert report does not comply with Pa.R.E. 702. Id. at 20.
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15 “It is well-settled that inconsistent verdicts are permissible” and “this Court
will not disturb guilty verdicts on the basis of apparent inconsistencies as long
as there is evidence to support the verdict.” Commonwealth v. Burton, 234
A.3d 824, 829 (citations omitted).
16 “[T]he admission of expert testimony is a matter of discretion for the trial
court, and will not be disturbed absent an abuse of discretion.”
Commonwealth v. Powell, 171 A.3d 294, 305 (Pa. Super. 2017) (citation
omitted). Furthermore, “the standard for qualifying an expert is a liberal one:
the witness need only have a reasonable pretension to specialized knowledge
on a subject for which expert testimony is admissible.” Id. at 306 (citation &
quotation marks omitted).
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Appellant’s final two claims challenge the sufficiency and weight of the
evidence support his convictions. See Appellant’s Brief at 21-25. Regarding
the sufficiency of the evidence,17 Appellant contends the evidence does not
support a finding that he was “the sole possessor and potential trafficker of”
the drugs found in the vehicle. See id. at 22. He emphasizes the vehicle was
owned by the driver, Walzer, who was within “arms length” of where the drugs
were recovered, and who was in possession of two crack pipes which could
have been adapted to ingest the fentanyl. See id. Furthermore, Appellant
emphasizes the following: (1) the digital scale was not submitted for drug
analysis or fingerprint testing; (2) Detective Legge did not consider the fact
that Appellant could have used the cash he carried to ingest the fentanyl; and
(3) the small amount of fentanyl recovered was more consistent with personal
use than distribution, and had a street value of only $3 to $5 per bag. See
id. at 23.
Finally, with regard to the weight of the evidence,18 Appellant insists the
“verdict should shock one’s sense of justice” because the jury concluded that
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17 A challenge to the sufficiency of the evidence requires this Court to
“determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction beyond a reasonable
doubt.” Commonwealth v. Williams, 302 A.3d 117, 120 (Pa. Super. 2023)
(citation omitted).
18 A challenge to the weight of the evidence must first be presented to the
trial court, “and if that court rejects the challenge, on appeal, we review its
rejection of the claim for abuse of discretion.” Commonwealth v. Lynch,
(Footnote Continued Next Page)
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Appellant “did not possess the primary piece of evidence (the digital scale)
the Commonwealth argued proved intent to deliver,” and, accordingly, must
have improperly considered the “hand-to-hand” interaction testimony.
Appellant’s Brief at 24-25.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court thoroughly addressed and
properly disposed of Appellant’s remaining five claims in its May 11, 2023,
opinion. See Trial Ct. Op., 5/11/23, at 10-27 (trial court opining that (1) it
properly sustained the objection to Officer Conley’s testimony that “hand to
hand” interaction was an “exchange” and issued a cautionary instruction to
the jury that it may presume was followed;19 (2) jury’s purported inconsistent
acquittal on the charge of possession of drug paraphernalia did not undermine
the guilty verdict on charge of PWID since “even without the digital scale, the
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242 A.3d 339, 353 (Pa. Super. 2020). Here, Appellant properly preserved his
weight of the evidence challenge in a timely filed post-sentence motion. See
Pa.R.Crim.P. 607(A)(1)-(3) (weight of the evidence claim must be raised
before the trial court before sentencing, at sentencing, or in a post-sentence
motion); Appellant’s Motion for Post-Sentence Relief at 1-2.
19 We note the trial court, alternatively, concluded Appellant “waived his
objection” to the officer’s testimony regarding the “hand-to-hand exchange”
because he did not object the first time the officer referenced a hand-to-hand
exchange. See Trial Ct. Op. at 19. We do not agree. The first two times the
officer referenced a “hand-to-hand exchange” he was explaining, in general,
that he had observed these types of drug sales in his work with the drug task
force. See N.T., 11/15/22, at 35. However, shortly after the officer stated
he witnessed Appellant engage in such an exchange, Appellant objected. See
id. at 39. Thus, we would not determine the objection was waived.
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evidence [was] sufficient to support [the] conviction[;]” (3) it did not err in
permitting Detective Legge to testify as expert based on his experience, and
Appellant did not object when court qualified the detective as an expert
witness; (4) the evidence was sufficient to support Appellant’s convictions of
PWID and possession of fentanyl since the Commonwealth established (a)
Appellant had constructive possession of the drugs recovered from the
passenger floorboard when he was seen making furtive movements in that
area as the vehicle was stopped, and (b) “the packaging of the drugs and
large sum of cash[ on Appellant], together with the expert witness and
absence of personal use paraphernalia, sufficiently established an intent to
deliver[;]” and (5) “the jury’s verdict did not shock the conscience”
considering the evidence regarding Appellant’s furtive movements, the
packaging of the drugs recovered from the vehicle, the large sum of cash
recovered from Appellant, and the lack of personal use paraphernalia for
fentanyl).
Accordingly, for the remainder of Appellant’s claims, we rest on the
court’s well-reasoned bases, and direct that a copy of the trial court’s May 11,
2023, opinion be filed along with this memorandum, and attached to any
future filings in this case.
Judgment of sentence affirmed.
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DATE: 12/8/2023
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