Com. v. Brinson, R. ( 2021 )

J-A15042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL BRINSON :
:
Appellant : No. 2124 EDA 2020
Appeal from the Judgment of Sentence Entered May 6, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006298-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL BRINSON :
:
Appellant : No. 2135 EDA 2020
Appeal from the Judgment of Sentence Entered May 6, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004720-2017
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 21, 2021
Russel Brinson (“Brinson”) appeals from the judgments of sentence
imposed following his convictions of one count each of possession with intent
to deliver heroin, possession with intent to deliver cocaine, possession of
heroin, possession of cocaine, and two counts of criminal use of a
J-A15042-21
communication facility1 under Docket Number CP-46-CR-004720-
2017(“4270-2017”); and one count each of possession with intent to deliver
heroin, possession with intent to deliver cocaine, possession of heroin,
possession of cocaine, and criminal use of a communication facility under
Docket Number CP-46-CR-006298-2017 (“6298-2017”). After careful review,
we affirm in part and vacate and remand in part.
Prior to trial, Brinson filed an Omnibus Pretrial Motion, and several
supplemental Motions, seeking, inter alia, to suppress all physical evidence
and statements he made to police. The trial court held a hearing and denied
the Motions. The trial court set forth findings of fact and evidence presented
at the suppression hearing and Brinson’s trial, and we adopt those findings as
if set forth fully herein. Trial Court Opinion, 8/16/19, at 3-8 (attached and
referred to in Trial Court Opinion, 1/15/21, at 2).
Following a consolidated bench trial, Brinson was convicted of the crimes
set forth above. The trial court sentenced Brinson under both dockets on May
6, 2019. Under docket number 4720-2017, the trial court sentenced Brinson
to twenty-one to forty-two months in prison for possession with intent to
deliver heroin, a consecutive sentence of eighteen to forty-two months in
prison for possession with intent to deliver cocaine, and twelve to twenty-four
months in prison for each count of criminal use of a communication facility, to
____________________________________________
1 35 P.S. § 780-113(a)(30), (16); 18 Pa.C.S.A. § 7512.
-2-
J-A15042-21
be served concurrently with each other, and concurrently with his sentences
for possession with intent to deliver. The trial court imposed no further
penalty on the other counts.
Under docket number 6298-2017, the trial court sentenced Brinson to
twenty-one to forty-two months in prison for possession with intent to deliver
heroin, a consecutive sentence of eighteen to forty-two months in prison for
possession with intent to deliver cocaine, and twelve to twenty-four months
in prison for the criminal use of a communication facility, to be served
concurrently with his sentences for possession with intent to deliver. The trial
court imposed no further penalty on the other counts. Brinson’s sentences at
each docket were to run consecutively, for an aggregate sentence of seventy-
eight to one-hundred sixty-eight months in prison. Brinson was also assessed
costs at each docket number.
Despite convictions under two docket numbers, Brinson originally filed
a single Notice of Appeal, in violation of Commonwealth v Walker, 185 A.3d
969 (Pa. 2018), and its progeny. Brinson ultimately discontinued his direct
appeal and filed a Post Conviction Relief Act (“PCRA”)2 Petition seeking the
reinstatement of his direct appellate rights, nunc pro tunc. On October 20,
2020, the PCRA court granted Brinson’s Petition and reinstated his direct
appellate rights, nunc pro tunc. Brinson filed Notices of Appeal at both docket
____________________________________________
2 42 Pa.C.S.A. §§ 9541-9546.
-3-
J-A15042-21
numbers, as well as a court-ordered Pa.R.A.P. 1925(b) Statement of Matters
complained of on appeal.
Brinson presents the following questions for our review:
A. Did the suppression court commit an error of law by denying
[Brinson’s] Motion to Suppress physical evidence and
statements?
B. Did the Commonwealth fail to present sufficient evidence to
sustain [Brinson’s] conviction of [possession] and
possession with intent to deliver cocaine[,] because it did
not prove that the substance was cocaine?
C. Did the sentencing court impose an illegal sentence by
imposing the cost of prosecution twice on [Brinson]?
D. Did the trial court deprive [Brinson] of due process of law
by failing to provide him with a bill of costs?
Brief for Appellant at 3 (capitalization omitted).
In his first question, Brinson argues that the trial court erred when it
denied his Motion to Suppress. Brief for Appellant at 17. In support, Brinson
argues that the trial court erred when it denied his Motion to suppress the
drugs, cell phones, statements, and information contained in the cell phones,
because the police lacked probable cause to conduct the warrantless arrest on
May 9, 2017, which led to the discovery of the above items. Id. Specifically,
Brinson argues that the information from the confidential informant (“CI”) was
stale because it was received by police three months before they began their
investigation. Id. at 25. In support, Brinson relies on Commonwealth v.
Novak, 335 A.2d 773 (Pa. Super. 1975). Brief for Appellant at 17. He further
alleges that the information acquired from the CI did not establish probable
-4-
J-A15042-21
cause to arrest him because the Commonwealth failed to present evidence
connecting Brinson to the phone number provided, and he was not observed
engaging in any criminal conduct before he was arrested. Brief for Appellant
at 18. Brinson avers that the Commonwealth failed to corroborate and confirm
the phone number that the CI provided belonged to Brinson prior to his arrest.
Id. at 22.3
Our standard of review of the denial of a motion to suppress evidence
is as follows:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where ... the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on [the]
appellate court, whose duty it is to determine if the suppression
____________________________________________
3 Brinson further argues that probable cause was not established when Agent
Shurr observed him in the area of the arranged buy because, inter alia,
Brinson did not arrive at the area for an hour; he was not at the “site” of the
arranged deal; he lived near the area of the buy; Agent Shurr testified that
he often saw Brinson in Norristown; no drug exchanges occurred; and Brinson
was not observed speaking on a cellular telephone or otherwise engaging in
criminal conduct. Brief for Appellant at 27-30. Finally, Brinson argues that
because he was illegally arrested, his volunteered statement should have been
suppressed as it was fruit of the illegal arrest. Id. at 32. As discussed infra,
probable cause for the warrantless arrest was established.
-5-
J-A15042-21
court properly applied the law to the facts. Thus, the conclusions
of law of the [trial court are] subject to plenary review.
Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019) (quoting
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012)).
“Further, appellate courts are limited to reviewing only the evidence presented
at the suppression hearing when examining a ruling on a pre-trial motion to
suppress.” Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa. Super.
2017) (citation omitted). Finally, it is within the suppression court’s sole
province as factfinder to determine the credibility of witnesses and the weight
that should be given to their testimony. Id.In its Opinion, the trial court addressed Brinson’s claim and concluded
that it lacks merit. Trial Court Opinion, 8/16/19, at 8-10. We find no error or
abuse of discretion in the trial court’s analysis on this issue and affirm on this
basis with regard to this claim, with the following addendum. See id.Concerning Brinson’s claim that the information provided by the CI was
stale because it was received by police three months before their
investigation, we note in the instant case the police corroborated the CI’s
information, which occurred within forty-eight hours of Brinson’s arrest. To
the extent Brinson relies on Commonwealth v. Novak, 335 A.2d 773 (Pa.
Super. 1975), this case is factually distinguishable. In Novak, this Court
found that probable cause for a search warrant was not established where the
information from the CI was received more than a month before the warrant
-6-
J-A15042-21
was issued, and no evidence of continued illegal activity was presented.
Novak, 335 A.2d at 775.
In the instant case, the CI’s tip was corroborated within forty-eight
hours of Brinson’s arrest. Here, the police contacted Brinson less than two
days before he was arrested, via the phone number provided by the CI, and
were able to purchase heroin using the terminology provided by the CI.
N.T.(Suppression Motion) 9/28/18, at 44. Under such circumstances, any
stale information from the CI was rendered viable. See Commonwealth v.
Karns, 566 A.2d 615 (Pa. Super. 1989) (finding that probable cause was
established where there was a showing that the illegal activity was occurring
up to the issuance of the warrant). See also Commonwealth v. Haggerty,
564 A.2d 1269, 1272 (Pa. Super. 1989) (recognizing that a “[m]ere lapse in
time between discovery of criminal activity and issuance of a search warrant
will not necessarily dissipate probable cause and a showing that criminal
activity is likely to have continued up to the time of issuance of a warrant will
render otherwise stale information viable”).
Brinson next argues that the evidence was insufficient to sustain his
convictions for possession of cocaine and possession with intent to deliver
cocaine at docket number 6298-2017, because the Commonwealth failed to
prove that the substance at issue was cocaine. Brief for Appellant at 33. In
support of his sufficiency claim, Brinson argues that the substance was
identified as N-Ethylpentylone, a Schedule 1 substance, and not cocaine. Id.-7-
J-A15042-21
(citing N.T. (Trial), 1/24/19, at 11-14). Brinson posits that the allegation in
the Information does not match the evidence presented at trial; therefore,
those charges should be dismissed. Id.[O]ur standard of review of sufficiency claims requires that
we evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is to
be resolved by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted).
Brinson’s argument misstates the record. A review of the record reveals
that the only substances tested by the lab at docket number 6298-2017 were
found on the victim, and taken from the wax paper bags filled with suspected
heroin and stamped “Godzilla.”4 N.T. (Trial), 1/24/19, at 11-12; Id. at Exhibit
C-3. Indeed, the lab report did not test any substance that was purported to
____________________________________________
4 A review of the record and the Affidavit of Probable Cause establishes that
Tara Bazemore (“Bazemore”) told the victim that Bazemore wanted the victim
to buy Bazemore “a hard” (slang for crack cocaine), in addition to the heroin
Bazemore was purchasing for the victim. N.T. (Trial), 1/24/19, at 13.
Bazemore kept the crack cocaine as payment for facilitating the drug deal
between Brinson and the victim. Id. Thus, the record reflects that Bazemore
did not deliver any crack cocaine to the victim. Id. at Exhibit C-4.
-8-
J-A15042-21
be cocaine or sold to Bazemore as cocaine. During trial, the Commonwealth
stated that the “The heroin [Brinson] sold to Bazemore for the victim was
tested by NMS Labs ….” N.T. (Trial), 1/24/19, at 13-14. Neither the lab report
nor the notes of testimony make any reference to testing the cocaine sold or
given to Bazemore by Brinson. Thus, to the extent Brinson argues that a
substance, alleged to be cocaine, was revealed to be N-Ethylpentylone, that
argument is not supported by the record.
Moreover, per Brinson’s stipulation, it was uncontradicted at trial that
Brinson sold Bazemore ten dollars’ worth of cocaine and provided her another
bag of cocaine gratis as a “thank you” for arranging the sale of heroin to the
victim. N.T. (Trial), 1/24/19 at 13. The sale to Bazemore occurred two days
before Brinson was apprehended with cocaine and heroin following the
controlled buy at docket number 4720-2017. Id. at 9. Samples of the
recovered drugs at docket number 4720-2017 were lab tested and confirmed
to be cocaine and heroin. N.T. (Trial), 1/24/19, at Exhibit C-1.
All of the above evidence, taken together in the light most favorable to
the Commonwealth, established that Brinson delivered cocaine to Bazemore.
See Commonwealth v. Lawson, 671 A.2d 1161, 1165 (Pa. Super. 1996)
(stating that “[t]he identity of illegal narcotics may be established by
circumstantial evidence alone, without any chemical analysis of the seized
contraband.”). Brinson is due no relief on his sufficiency of the evidence claim.
-9-
J-A15042-21
Brinson’s third and fourth issues, which we will address together, relate
to costs imposed upon him. In his third issue, Brinson argues that based upon
a review of docket numbers 4720-2017 and 6298-2017, numerous costs
appear to have been imposed more than once. Brief for Appellant at 37-38.
Brinson argues that because the cases were consolidated for trial, costs should
have only been imposed in one case, not both. Id. at 38.
In his fourth issue, Brinson submits that this case must be remanded
for resentencing because he was not provided a copy of the bill of costs, but
rather, the trial court-imposed costs “without delineating what the costs were
and the amounts attributable thereto.” Id. Brinson argues that this failure
constitutes a violation of his right to due process. Id. Brinson asserts that a
defendant may only be required to pay costs authorized by statute, and those
costs must be reasonable. Id. at 39. Brinson further argues that in order to
determine whether the costs are reasonable, they must be itemized. Id.
Brinson asks that we vacate the Order imposing costs and remand the matter
for resentencing. Id. at 40.
In its brief, the Commonwealth concedes that there should only be one
set of costs per case, so any duplicative costs should be vacated.
Commonwealth’s Brief at 24. As to Brinson’s argument that his due process
rights were violated because the lower court did not provide him with a bill of
costs, the Commonwealth counters that Brinson waived this issue, because he
failed to raise the issue at sentencing, in a post-sentence motion, or in his first
- 10 -
J-A15042-21
Rule 1925(b) Concise Statement. Id. at 28. The Commonwealth argues that
although the imposition of costs is a non-waivable challenge to the legality of
his sentence, Brinson’s constitutional claim is waived. Id. at 29.
Where an appellant argues that the trial court did not have the authority
to impose the costs at issue, this Court has held such an argument implicates
the legality of the sentence. Commonwealth v. Garzone, 993 A.2d 306,
316 (Pa. Super. 2010). A claim raising the legality of the sentence is non-
waivable and may be raised for the first time on appeal. Commonwealth v.
Bezick, 207 A.3d 400, 403 (Pa. Super. 2019).
In its Opinion, the trial court noted that Brinson was ordered to pay the
costs of prosecution for counts one (possession with intent to deliver heroin)
and two (possession with intent to deliver cocaine) at docket number 4720-
17, and counts one (possession with intent to deliver heroin) and two
(possession with intent to deliver cocaine) at docket number 6298-17. Trial
Court Opinion, 1/15/21, at 4. The trial court noted that the Commonwealth
did not provide a bill of costs at sentencing, itemize the costs, or order Brinson
to pay a specific amount. Id. Thus, the trial court stated that it is without
knowledge whether the clerk of courts imposed illegal costs on Brinson and
would hold an evidentiary hearing on remand if this Court determines the
issue is of merit. Id.Indeed, a review of the dockets reveals a number of costs and fees
which appear duplicative of one another. Given that both dockets involved in
- 11 -
J-A15042-21
this case involve the same crimes (possession with intent to deliver cocaine
and heroin, possession of cocaine and heroin, and criminal use of a
communication facility), and the cases were consolidated and tried together,
a single set of costs should have been imposed. See Commonwealth v.
Adams, 421 A.2d 778, 779 (Pa. Super. 1980), (concluding that where the
appellant was convicted of nine thefts, which were of similar character, those
thefts could have been charged in one information and, therefore, only a single
set of costs should have been assessed to the appellant.)
Our review further discloses that the costs assessed at the individual
dockets are not identical – the total cost is $2,789.75 at docket 4720-2017
and $2,211.75 at docket 6298-2017. As set forth supra, it is unclear which
costs are duplicative. Thus, we vacate the judgment of sentence and remand
to the trial court for a hearing to determine the costs that were illegally
assessed against Brinson, after the Commonwealth provides the trial court
and Brinson with a bill of costs to facilitate that review. Because the trial
court’s determination of costs does not impact the sentencing scheme, we
vacate only that portion of the judgment of sentence.
Judgment of sentence affirmed on part and vacated in part. Case
remanded for further proceedings consistent with this Memorandum. Superior
Court jurisdiction relinquished.
- 12 -
J-A15042-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2021
- 13 -
Circulated 08/25/2021 10:20 AM
OPINION
COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0004720-2017
CP-46-CR-0006298-2017
V.
2135 EDA 2020 z .r
RUSSELL BRINSON 2124 EDA 2020 ••^s
OPINION --;-
-V .5 •'r9
MAAZ, J. January 15, 2$21
__4 -<
I. INTRODUCTION
Defendant Russel Brinson appeals from the judgment of sentence imposed on May 6, 2019
and the Order denying his pre-trial motions on November 15, 2018. Under Bill of Infonnation
4720-17, Defendant was sentenced to twenty-one (21) to forty-two (42) months of imprisonment
for possession with intent to deliver heroin, eighteen (18) to forty-two (42) months of
imprisonment for possession with intent to deliver cocaine to be served consecutively and twelve
(12) to twenty-four (24) months imprisonment on each count of criminal use of acommunication
facility to be served concurrently with no further penalty on the remaining counts. Under Bill of
Information 6298-17, Defendant was sentenced to twenty-one (21) to forty-two (42) months of
imprisonment for possession with intent to deliver heroin, eighteen (18) to forty-two (42) months
of imprisonment for possession with intent to deliver cocaine to be served consecutively and
twelve (12) to twenty-four (24) months imprisonment for criminal use of acommunication facility
to be served concurrently with no further penalty on the remaining counts. The sentences under
4720-17 and 6298-17 are to be served consecutively for an aggregate term of seventy-eight (78)
to one hundred sixty-eight (168) months imprisonment in astate correctional institute.
I
I1. PROCEDURAL HISTORY
Defendant originally fled aNotice of Appeal on June 5, 2019. The trial court opinion was filed
of record on August 16, 2019. On June 12, 2019, the Superior Court of Pennsylvania ordered
Appellant to show cause why the appeal' should not be quashed for failure to comply with
Pa.R.A.P. 341(a) requiring separate notices of appeal to be filed when asingle order resolves issues
arising on more than one trial court docket. Defendant's direct appeal was discontinued on October
7, 2019 by order of Defendant's trial and appellate counsel, Mr. James Patrick Lyons, Esquire. On
September 3, 2020, Defendant filed aPCRA petition to reinstate his direct appellate rights. On
September 21, 2020, the court ordered the Commonwealth to respond to Defendant's petition
within twenty days. By letter addressed to the court dated September 22, 2020, the Commonwealth
stated it had no objection to the reinstatement of Defendant's appeal rights. On October 1, 2020,
Defendant's uncontested PCRA petition was granted and Defendant's direct appeal rights were
reinstated.
Defendant filed new Notices of Appeal on October 30, 2020 for both trial court dockets in
which only one trial court docket number was included on each notice. Defendant's concise
statement of matters complained of on appeal raises the following issues:
1. Appellant avers the Suppression Court erred by denying his
motions to suppress physical evidence and his statements in both
criminal matters filed against him because the police lacked
probable cause to arrest and search him pursuant to the 41"
amendment of the US Constitution and article 1, section 9of the
Pennsylvania Constitution thereby rendering the evidence
seized and statements he made as aresult of the illegal arrest and
search fruits of the poisonous tree.
2. Appellant avers the Suppression Court erred by denying his
motion to suppress phone records obtained by the authorities
because his seizure and evidence obtained from his phone(s)
were done without probable cause or avalid warrant, in violation
'1596 EDA 2019.
2
of the 4th Amendment of US Constitution and article I, section 9
of [the] Pennsylvania Constitution
3. The convictions of possession of cocaine and possession of
cocaine with intent to deliver were against the weight of the
evidence because the evidence failed to prove that the substance
was actually cocaine.
4. The evidence presented by Commonwealth was insufficient to
sustain appellant's convictions for possession of cocaine and
possession of cocaine with intent to deliver because the evidence
failed to establish that the substance allegedly found in his
possession was actually cocaine.
5. The sentencing court imposed costs more than once without any
statutory authority to do so and in violation of 19 P.S. section
1294 and 42 P.S. section 20003(b).
6. The sentence court failed to provide the defendant with abill of
costs at the time of sentencing to which he could file objections,
thereby depriving him of notice and an opportunity to object in
violation of due process.
Concise Statements, 11/30/20. Issues numbers one (1) through four (4) were previously addressed
in the trial court's August 16, 2019 opinion, attached hereto.' The court refers to its previous
opinion for discussion of these issues raised on appeal.
Issues numbers five (5) and six (6) involve the imposition of the costs of prosecution at
sentencing. These issues were not raised in Defendant's original concise statement and are raised
Z Challenges to the sufficiency and weight of the evidence of the PWID cocaine conviction were raised in Defendant's
original concise statement. Issue numbers three (3) and four (4) above include challenges to the weight and sufficiency
of the evidence regarding the conviction for possession of cocaine which were not specifically raised in Defendant's
first concise statement on June 9, 2019. However, the court addressed both the weight and sufficiency of the evidence
regarding Defendant's conviction for the possession with intent to deliver cocaine in its August 2019 opinion. The
court refers to its previous opinion as the convictions of possession of cocaine and possession of cocaine with the
intent to deliver merged for sentencing purposes. See Commonwealth v. Edwards, 449 A.2d 38, 39 (Pa, Super. 1982)
("Delivery necessarily includes possession with the intent to deliver and possession with the intent to deliver clearly
includes possession. The charges are therefore merged for sentencing purposes. "). Under Bill of Information 4720-
2017, the NMS lab report dated May 23, 2017 was admitted into evidence and stated the drugs recovered from
Defendant included 1.55 grams of cocaine. (T1 at 8-9; Ex. C-1.) Under Bill of Information 6298-2017, the parties
stipulated that the Commonwealth would present evidence supporting that witness Tara Bazemore "met the defendant,
who sold her seven bags of heroin and two bags of crack cocaine." (TI at 13). Defendant's convictions of possession
of cocaine are supported by the sufficiency and weight of the evidence.
3
for the first time in the instant appeals. The imposition of costs involve the legality of Defendant's
sentence and are not waived. See Commonwealth v. Purvis, 237 A.3d 471 (Pa. Super., May 21,
2020). Defendant was ordered to pay the costs of prosecution for counts 1(PWJD heroine) and 2
(PWID cocaine) under Bill of Information 4720-2017 and the costs of prosecution for counts 1
(PWID heroine) and 2(PWID cocaine) under Bill of Information 6298-2017. The Commonwealth
did not provide the court with abill of costs at sentencing. The court did not itemize the costs of
prosecution or order Defendant to pay aspecific amount. The court is without knowledge whether
the clerk of courts imposed illegal costs upon Defendant after he was sentenced. The court will
conduct an evidentiary hearing upon remand if the Superior Court determines that these claims
may have merit.'
BY THE COURT:
r
Richard P. Haaz, J.
Copies e-mailed on 1/15/21 to;
Kevin R. Steele, Esquire
Robert M. Falin, Esquire
James P. Lyons, Esquire
Clerk of Courts
Secretary
3 These issues are currently before the Commonwealth Court in aclass action lawsuit. See Complaint, McFal/s, et al.
v. 38"' Judicial Disirict, et al., 4MD 2021 (Pa. Cnwlth. Jan. 5, 2021).
4
COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0004720-2017
CP-46-CR-0006298-2017
ra
V. +
•a .. -
1
• a,
RUSSELL BRINSON 1596 EDA 2019 am,
G
OPINION •r
HAAZ, J. August 12019
INTRODUCTION
On January 24, 2019, Defendant was convicted in astipulated bench trial of possession
with intent to deliver heroin (UF), possession with intent to deliver cocaine (UF), possession of
heroin (UM), possession of cocaine (UM) and two counts of criminal use of acommunication
facility (173) under Bill of information 4720-17 and of possession with intent to deliver heroin
and fentanyl (UF), possession with intent to deliver cocaine (UF), possession of heroin and
fentanyl (UM), possession of cocaine (UM) and criminal use of acommunication facility (F3)
under Bill of Information 6298-17. Defendant was found not guilty of violating the Controlled
Substance, Drug, Device and Cosmetic Act under count six of Bill of Information 6298-17.
Defendant was sentenced on May 6, 2019 under both bills of information. Under 4720-
17, Defendant was sentenced to twenty-one (21) to forty-two (42) months of imprisonment for
possession with intent to deliver heroin, eighteen (18) to forty-two (42) months of imprisonment
for possession with intent to deliver cocaine to be served consecutively and twelve (12) to
twenty-four (24) months imprisonment on each count of criminal use of a communication
facility to be served concurrently with no further penalty on the remaining counts. Under 6298-
17, Defendant was sentenced to twenty-one (21) to forty-two (42) months of imprisonment for
possession with intent to deliver heroin, eighteen (18) to forty-two (42) months of imprisonment
I
for possession with intent to deliver cocaine to be served consecutively and twelve (12) to
twenty-four (24) months imprisonment for criminal use of acommunication facility to be served
concurrently with no further penalty on the remaining counts. The sentences under 4720-17 and
6298-17 are to be served consecutively for an aggregate term of seventy-eight (78) to one
hundred sixty-eight (168) months imprisonment in a state correctional institute. Defendant
appeals from his judgment of sentence.'
On July 31, 2017, Defendant filed an omnibus pre-trial motion that included amotion to
suppress. The court held a suppression hearing on September 28, 2018 and issued written
findings of fact and conclusions of law on November 15, 2018 which denied Defendant's
motion. 2 On January 24, 2019, the court conducted astipulated bench trial, The parties agreed
that all non-hearsay testimony and evidentiary exhibits produced at the suppression hearing were
to be incorporated into the Commonwealth's case-in-chief. (T1 at 7:2-16), 3
Defendant did not file any post-sentence motions following the bench trial and
Defendant's convictions and sentencing. Defendant filed asingle notice of appeal for both cases
on June 5, 2019. On June 6, 2019, the court ordered Defendant to file aconcise statement of
errors complained of on appeal within twenty-one (21) days pursuant to Pa.R.A.P. 1925(b). On
July 9, 2019, Defendant filed the following concise statement of errors complained of on appeal:
1. Instant counsel did not file this statement timely through oversight] and did not
intentionally fail to comply with this Honorable Court's Order. Counsel is Court
appointed for purposes of this appeal.
2. Defendant aver[]s that the Suppression Court committed error in denying the motions
to suppress the physical evidence and statement of defendant in both matters above
referenced, in that there was insufficient probable cause to arrest and search
'Defendant is not challenging any aspect of the sentences in this appeal,
2 A copy of the court's findings of fact and conclusions of law dated November 15, 2018 is attached hereto.
'TI =Transcript of January 24, 2019 stipulated bench trial
T2 =Transcript of September 28, 2018 suppression hearing
2
defendant, and thus any evidence uncovered as aresult of that arrest was fruit of the
poisonous tree. Further, the Court erred in denying the motion to suppress the phone
records of defendant for the same reason, as well as because the records were
obtained without avalid search warrant in violation of the 4th amendment of the US
constitution as well as applicable sections(s) of the Pennsylvania Constitution Article
Isection 9.
3. Defendant requests the Court accept this filing as nuns pro tunc, so as to obviate the
need to file PCRA motions on ineffectiveness grounds[), which will only serve to
delay the appeal process.
4. Verdict is contrary to the weight of the evidence as to the cocaine PWID Count from
the Lower Merion Prosecution as no evidence was produced establishing the
substance was cocaine.
5. The evidence was insufficient to support the verdict on said count, for the reason
aforementioned.'
FINDINGS OF FACT
I. Evidence at the Suppression Hearing
The following facts were adduced at the September 28, 2018 evidentiary hearing on
Defendant's motion to suppress. Agent Robert Shurr, currently an agent with the Pennsylvania
Is Office of the Attorney General, was aCorporal with the Norristown Police Department at the
Ir•l time of the subject events. (T2 at 15:9-16:20). Officer Joshua Keenan, also of the Norristown
Cl
' Police Department, was assigned to the Community Oriented Police Engagement (COPE) unit.
I This unit is primarily focused on riarcotics crimes that occur in Norristown. (T2 at 15:24-1 6:7).
CI
ICI
,f
4 On June 6,2019, Defendant was ordered to fie a concise statement of errors comp l
ained of on appeal within
10 twenty-one ( 21) days . Defendant filed his concise statement on July 9, 2019, twelve (12) days beyond the deadline
I for filing. "A failure to comply with such direction may be considered by the appellate court as a waiver of all
Cl objections to the order,ruling or other matter complained of," Commonwealth v. Lord, 719 A.2d 306 ,308 (Pa.
1998). Any deviation from this bright- line rule was viewed disapprovingly by our Supreme Court in
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). However, subsequent to Castillo, Pa.R.A.P. 1925 was
amended to include Pa .R,A.P. 1925 ( c)(3) allowing for aremand to file aconcise statement nunc pro tune in certain
circumstances where aconcise statement is not tiled or is untimely filed. As aconsequence of the amended rule, "if
there has been an untimely filing, tthe superior court)may decide the appeal on the merits if the trial court had
adequate opportunity to prepare an opinion addressing the issues being raised on appeal .If the trial court did not
have an adequate opportunity to do so, remand is proper." Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super.
2009 ). Accordingly ,the court will address Defendant ' sissues on the merits.
3
Agent Shurr had known Defendant for approximately fifteen years and had between
twenty and fifty interactions with him prior to Defendant's arrest in May 2017. (T2 at 19:7-
20:12). As aresult of this familiarity, Agent Shurr was aware that Defendant sometimes went by
the nicknames "Dice" and "Slim." (T2 at 20:24-21:14). Within three months prior to May 2017
Agent Shurr received information from aConfidential Informant (CI) that aperson known as
"Dice" was selling heroin. (T2 at 21:15-23). Agent Shurr testified that he had worked with this
CI before and the CI had provided reliable information in the past leading to multiple arrests and
prosecutions. Agent Shurr was unsure if any of these prosecutions led to conviction. (T2 at
22:10-18).
The CI provided Agent Shurr with atelephone number and stated that heroin could be
ordered by dialing the number and that Russell Brinson would deliver the heroin. (T2 at 22:21-
23:8). The CI told Agent Shurr that the term "platters" was to be used as acode word for heroin
when ordering heroin from the telephone number the CI provided. Ibid. Despite Agent Shurr's
familiarity with street level drugs sales and slang through his work on -narcotics investigations,
he was unfamiliar with the expression "platters" as used to refer to heroin and believed it to be
unique to this circumstance. (T2 at 25:10-11). Agent Shun relayed all of this information to
Officer Joshua Keenan, whom he supervised, for further investigation. (T2 at 25:25-27:4).
Officer Keenan had no prior interaction with Defendant. (T2 at 43:11-13). On May 7,
2017, Officer Keenan sent atext message to the .telephone number provided to
Agent Shurr by the CI and received aphone call from that number in response. During this
phone call the individual asked for Officer Keenan's name. Officer Keenan told the individual
that his name was Mike and requested "two platters." (T2 at 41:9-12; 43:3-10; 44:10-14). The
individual contacting Officer Keenan appeared to be familiar with the expression "platters." (T2
at 44:18 -21).
4
On May 9, 2017, Officer Keenan again made contact with the individual through both
text message and voice calls on two different phone numbers. and
(T2 at 46:17-48;18). Officer Keenan requested two platters and arranged to meet to make the
purchase in the area of Airy and Barbadoes Streets or Marshall and Barbadoes Streets in
Norristown, Pennsylvania. (T2 at 48:19-23). Officer Keenan was eventually contacted by the
individual again who told him that he would "be right there" and that he was going to be coming
from Swede Street towards Barbadoes Street. (T2 at 50:12-20). Officer Keenan informed Agent
Schurr of the meeting location and the individual's stated path of travel. (T2 at 50:25-51:5).
Agent Shurr then parked at the southwest comer of Barbadoes and Marshall Streets in an
unmarked police vehicle to await the arrival of the individual delivering the heroin. (T2 at 73:7-
13; 75:14).
Agent Shurr began driving east on Marshall when he observed Defendant walking west
on Marshall Street. Defendant walked to the corner of Marshall and Barbadoes and got in the
front passenger side of a vehicle. (T2 at 73:13-14). As the vehicle began to travel south on
Barbadoes toward Airy Street, Agent Shurr stopped Defendant's vehicle in his unmarked police
car. (T2 at 75:13-15). Agent Shurr then approached Defendant, "escorted him out of the car"
and placed Defendant in custody for "the cell phone violation." (T2 at 76:12-17). Agent Shurr
then searched Defendant's person. Agent Shurr confiscated heroin, crack cocaine, and acellular
telephone that were on Defendant's person. (T2 at 79:8-10). Additionally, he recovered a
cellular telephone on the passenger seat of the vehicle in which Defendant was stopped. (T2 at
81;18-23).
While Officer Keenan was processing Defendant at the Norristown Police Station,
Defendant made a spontaneous unsolicited statement to the effect of "you just had to pick a
5
common name like Mike ... 1should have known it was afunky number." (T2 at 115:21-
1l
6:3).
On July 27, 2017, based upon an affidavit prepared and sworn to by Detective Michael
Laverty, the Honorable Gary Silow signed an order compelling the disclosure of records and
other information "concerning electronic communication service pertaining to the Cricket
Communications telephone number "including call detail records (CDRs) and
cell-site location information (CSLI) for the period May 1, 2017 to May 10, 2017 in accordance
with 18 Pa.C.S. §5743. These CDRs and CSLI were subsequently obtained pursuant to this
order. (T2 at 101:15-102:24). The July 27, 2017 order was based on an affidavit prepared and
sworn to by Detective Laverty setting forth "specific and articulable facts showing that there
were reasonable grounds to believe that the records sought were relevant and material to this
ongoing criminal investigation." (T2 at 102:8-12).
On February 16, 2018, in anticipation of the decision in United States v. Carpenter, 138
S.Ct. 2206 (June 22, 2018), which required police to obtain awarrant to acquire cell-site location
information, the Honorable Todd Eisenberg granted an application for a search warrant and
signed an order compelling the same cell phone records which had already been obtained
pursuant to Judge Silow's July 27, 2017 order. This search warrant was supported by the same
affidavit Detective Laverty used to obtain the July 27, 2017 order by Judge Silow. (T2 at 103:6-
104:8).
Il. Evidence at Trial
The parties stipulated that all non-hearsay evidence introduced at the suppression hearing
would be incorporated into the evidentiary record at trial. (T1 at 7:2-16). The parties also
agreed to admit the affidavits of probable cause underlying both criminal complaints and the
NMS lab reports for each case. (T1 at 9:22-10:15; 14:15-16:6). Under Bill of Information 4720-
6
17, the parties stipulated that the Commonwealth would produce witnesses who would testify to
the following at trial. In May of 2017, Officer Joshua Keenan and other members of the
Norristown Police Department opened an investigation into Russell Brinson. On May 7, 2017 at
1:45 p.m., Officer Keenan, working in an undercover capacity, reached out to Defendant on his
cellular phone via text message. Ex. C-2. Officer Keenan requested "platters" from Defendant,
which is aterm Defendant used to refer to heroin. On May 9, 2017 at 10:45 a.m., Defendant
contacted Officer Keenan via cell phone. Ibid. Officer Keenan requested two bundles of heroin.
Defendant told Officer Keenan that they could meet on Barbadoes Street in Norristown, between
West Marshall Street and West Airy Street, and that he was on his way there.
When Defendant later appeared at the agreed upon meeting location he was stopped by
Corporal Adam Shurr. Defendant was later found to be in possession of five bundles of
suspected heroin and $425 in United States currency. Defendant acknowledged the phone
conversation arranging the deal stating "I can't believe Ifell for that. You had to pick.a common
name like ``Mike."' The heroin and fentanyl possessed by Defendant was possessed with the
intent to deliver and was not for personal use. (Tl at 5:4-6:25). The NMS lab report was
admitted into evidence and states that the substances recovered from Defendant were heroin and
cocaine in the amounts of approximately one and one-half (1.5) grams each. Ex. C-1. The drugs
were divided into approximately sixty-two (62) individual packets of heroin and eighteen (18)
baggies of cocaine. Ibid.Under Bill of Information 6298-17, the parties stipulated that the Commonwealth would
produce witnesses who would testify to the following at trial. On May 7, 2017, at approximately
10:08 a.m., Upper Merion Police responded to acall regarding an unresponsive person at 441
Jean Drive in Upper Merion Township, Montgomery County. Upon arriving, officers found
7
Katherine Panzano deceased on her living room floor. Officers recovered seven wax paper bags
from the pants of the victim filled with suspected heroin and stamped "Godzilla."
The victim's father provided officers with her cell phone. Officers discovered atext
message conversation between the victim and anumber later identified as that of Tara Bazemore.
The conversation occurred between 12:09 a.m. and 2:07 a.m, on May 7, 2017. In the
conversation the victim requested heroin from Bazemore. Upper Merion detectives then located
Tara Bazemore.
Bazemore provided awritten statement and confirmed that she knew Panzano and had
helped her facilitate the purchase of heroin on May 7, 2017. On May 7, 2017, between 12:15
a.m. and 12:45 a.m., Bazemore communicated with Defendant, whom knew as "Dice," and
arranged for the purchase of seven bags of heroin and two bags of crack cocaine for $80 which
was provided to Bazemore by the victim. Bazemore positively identified "Dice" as Defendant.
Bazemore stated that the second bag of crack cocaine was given to her by Defendant as agift for
setting up the transaction with the victim. Both bags of crack cocaine were kept by Bazemore
who provided the victim with the seven bags of heroin. (TI at 11:14-14:7). The substance that
was found on the victim's person was tested by NMS and confirmed to be amixture of heroin
and fentanyl. Ex. C-3.
CONCLUSIONS OF LAW
1. Motion to Suppress
a. The Norristown Arrest
Defendant argues that his warrantless arrest was not supported by probable cause and
violated both the Fourth Amendment of the United States Constitution and Article 1, Section 8of
the Pennsylvania Constitution. Defendant further contends that the evidence seized pursuant to
8
the warrantless arrest and his statement were fruits of the poisonous tree and should be
suppressed.
A warrantless arrest must be supported by probable cause. Commonwealth v, Barnett,
398 A.2d 1019 (Pa. 1979). Any.evidence seized pursuant to asearch incident to awarrantless
arrest made without probable cause must be suppressed. Commonwealth v. Lovette, 450 A.2d
975 (Pa.), cert. denied, 459 U.S. 1178 (1983). In determining whether probable cause exists to
justify a warrantless arrest, the court must consider the totality of the circumstances.
Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995). "Where, as here, the officers['] actions
resulted from information gleaned from an informant, in determining whether there was probable
cause, the informant's veracity, reliability and basis of knowledge must be assessed." .In re O.A.,
717 A.2d 490, 495 (Pa. 1998) (plurality opinion) (citing Illinois V. Gates, 462 U.S. 213, 233
()983)). "[A]n assertion by apolice officer as to an informant's reliability with no objective
facts to substantiate his assertion is [in]sufficient to support afinding of probable cause." Id, at
I
496. In In re O,A., our Supreme Court held that "an informant's tip, without independent
corroboration by police, [is] insufficient to establish probable cause." Commonwealth v. Luv,
735 A.2d 87 (Pa. 1999).
It is true that in the instant case, like in In re O.A., the police testimony did not provide
any basis of knowledge for the CI's tip and amounted to abare assertion that the Cl had provided
reliable information in the past leading to non-specific arrests and prosecutions and no specific
convictions. However, the facts here are distinguishable from the facts of In re Q.A. In In re
O.A., the police were acting on an uncorroborated tip from an informant. Here, there was
evidence corroborating the informant's tip. Agent Shurr had known Defendant for fifteen (15)
years prior to his arrest and knew that he was sometimes referred to as "Dice." This is the name
the C1 used to refer to the individual for whom he was providing atelephone number. The
9
individual that Officer Keenan called`` using the number provided by the CI appeared to be
familiar with the expression "platters" as slang for heroin, the same expression provided by the
CI. Both officers testified that despite their familiarity with narcotics sales in the area, this was
not slang previously known to them. Finally, after communicating with the individual using the
number provided by the CI and arranging to purchase "platters" at aparticular meeting place
from the individual, Defendant showed up at the designated meeting place shortly after the
individual told police he would "be right there."
Taken together, the totality of the circumstances provided probable cause that Defendant
was the individual with whom Officer Keenan had been communicating using the telephone
number provided by the CI. Since this implies Defendant was using acommunication device to
facilitate the delivery of acontrolled substance or the attempt thereof, police had probable cause
to arrest Defendant for Criminal Use of aCommunication Facility in violation of 19 Pa.C.S, §
7512. Further, because the arrest was lawful, evidence seized as aresult of the search incident to
the arrest, as well as Defendant's spontaneous unsolicited statement while in custody, were not
fruits of the poisonous tree and, therefore, should not be suppressed.
b. The Upper Merion Case
Defendant argues that the evidence obtained pursuant to the July 27, 2017 order
compelling disclosure of CDRs and CSLI for the cellular telephone associated with the number
should be suppressed because it was obtained in contravention to the holding of
United States v. Carpenter, 138 S.Ct. 2206 (.tune 22, 2018). Defendant further argues that re-
obtaining the same information pursuant to asearch warrant issued on February 16, 2018 did not
cure this defect.
The Supreme Court of the United States in Carpenter held that "[bjefore compelling a
wireless carrier to turn over asubscriber's CSLI, the Government's obligation is afamiliar one —
10
get awarrant." 138 S.Ct. at 2221. The retroactive application of Carpenter to the present case
would therefore make the July 27, 2017 order compelling the disclosure of the CSLI associated
with the • number unconstitutional, implying that any CSLI obtained pursuant to
that order should be suppressed because it was not obtained as the result of a search warrant
supported by probable cause. However, the Commonwealth properly asserted that the
"independent source" doctrine made the evidence admissible at trial. "Under this rule, evidence
tainted by illegal police conduct (such as an unlawful seizure) nevertheless may be admitted into
evidence if the evidence can be fairly regarded as having an origin independent of the unlawful
conduct." Commonwealth v. Henderson, 47 A.3d 797, 798 (Pa. 2012). "If the prosecution can
demonstrate that the [challenged] evidence was procured from an independent origin — ameans
other than the tainted sources — the evidence will be admissible." Commonwealth v. Melilli, 555
A.2d 1254, 1262 (Pa. 1989). Furthermore, Henderson abrogated the requirement that the origin
of the evidence be "truly independent," in the sense that it originated from an independent
investigative team, "in the absence of police misconduct." Henderson, 47 A.3d at 802-05.
In the instant case, the parties stipulated that the affidavit used in support of the
application for asearch warrant giving rise to the July 27, 2017 order was identical to the one
used in support of the February 16, 2018 search warrant. The sufficiency of the affidavit is also
not being challenged, No information obtained as aresult of the July 27, 2017 order was used in
support of the February 16, 2018 search warrant, Judge Eisenberg was made aware that the
information being sought through the February 16, 2018 search warrant had already been
1
9
obtained. The July 27, 2017 order was signed by aneutral magistrate in accordance with the law
at the time, which had not yet been ruled unconstitutional. There was no police or prosecutorial
misconduct in obtaining this evidence. The court found that the independent source doctrine
does apply and that the cell phone contents and cell tower evidence should not be suppressed.
I
2. Sufficiency of the Evidence for PWID Cocaine Conviction
"[1)n reviewing the sufficiency of the evidence, the appellate court is required to review
all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the
Commonwealth, ,.. [as the verdict winner.)" Commonwealth v. Brunson, 938 A.2d 1057, 1058
(Pa. Super. 2007) (quoting Commonwealth v. Earnest, 563 A.2d 158, 159 (Pa. Super. 1989)),
"The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond areasonable
doubt." Ibid, "This standard is equally applicable to cases where the evidence is circumstantial
rather than direct so Fong as the combination of evidence links the accused to the crime beyond a
reasonable doubt." Ibid. (quoting Commonwealth v. Swerdlow, 636 A,2d 1173, 1176 (Pa. Super.
1994)). "Although aconviction must be based on 'more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical certainty."' Ibid, (quoting
Commonwealth v. Badman, 580 A,2d 1367, 1372 (Pa. Super. 1990)). "Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and
F
I
inconclusive that as amatter of law no probability of fact may be drawn from the combined
I•
circumstances," Commonwealth v, Moreno, 14 A.3d 133, 137 (Pa. Super. 2011). The court
notes, importantly, that "the finder of fact is free to believe all, part, or none of the evidence
a presented in judging the credibility of the witnesses and the weight to be afforded the evidence
•l
r produced." Commonwealth v. Henkel, 938 A.2d 433, 438 (Pa. Super. 2007).
10
8:
Defendant challenges only the sufficiency of the evidence to convict him of possession
Q with intent to deliver cocaine under Bill of Information 6298-17, The evidence supporting this
9
conviction included the stipulated testimony of Tara Bazemore and the affidavit of probable
cause entered into evidence at the stipulated bench trial without objection, Ex. C-4. It was
stipulated that Bazemore would have testified that she purchased seven bags of heroin and two
bags of crack cocaine from Defendant. This testimony was not contradicted or impeached by
12
any other evidence. Moreover, it was corroborated by other testimony and information found in
the affidavit of probable cause, Specifically, that seven wax paper bags containing heroin or
traces of heroin were recovered from the victim by Upper Merion police and Bazemore's phone
records confirmed interactions with both Defendant and victim at the appropriate times.
Katherine Panzano's father, Alexander Panzano, confirmed that the cell phone found on the
kitchen table near the victim's body belonged to the victim.
The text messages recovered between the victim and Bazemore between 12:09 a.m. and
2:07 a.m. on May 7, 2017 were about facilitating the purchase of heroin and crack cocaine. They
began with the victim texting Bazemore, "Hey ruawake Ineed to get some d." The affiants
wrote that based on their experience and training they knew "the letter ``d' to be an abbreviation
of the word ``dope.' "``Dope' is astreet term commonly associated with the drug heroin." Ex. C-
4. Based on their experience and training the affiants knew that the word "hard" in the text "It's
ago and Iwant you to get me ahard" was astreet term "commonly associated with the drug
crack cocaine." Ibid.In her statement to police, Bazemore said she helped the victim purchase heroin and, in
return, was given $10 to purchase crack cocaine for herself. Ibid. The drugs were purchased
from Defendant, whom Bazemore knew by the name "Dice," the same name that officers and
their CI knew was associated with Defendant. Ibid. Bazemore later positively identified
Defendant as the individual in question. In combination, this evidence was sufficient to find
beyond areasonable doubt that Defendant possessed cocaine with the intent to deliver.
3. Weight of the Evidence for PWID Cocaine
The court first notes that Defendant did not raise this issue before sentencing or through a
post-sentence motion as required by Pa.R.Crim.P. 607. Therefore, Defendant has waived this
13
issue. See Pa.R.Crim,P, 607 cmt. ("The purpose of this rule is to make clear that achallenge to
the weight of the evidence must be raised with the trial judge or it will be waived. ").
"The law in this Commonwealth has long been that anew trial may be ordered 'on the
ground that the verdict is against the weight of the evidence, when the' jury's verdict is so
contrary to the evidence as to shock one's sense of justice, and the award of a new trial is
imperative so that right may be given another opportunity to prevail."' Commonwealth v.
Murray, 597 A.2d 111, 113 (Pa. Super. 199 1) (quoting 10 Standard Pennsylvania Practice, New
Trial, §62:59). "Whether a new trial should be granted on such grounds is addressed to the
sound discretion of the trial court." Ibid. "One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be granted in the interest of justice."
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).
Here, Defendant's conviction for possession with intent to deliver cocaine under Bill of
Information 629.8-17 was supported by the weight of the evidence. The uncontradicted evidence
addressed in the previous section all clearly pointed to Defendant's guilt regarding this offense.
Although no cocaine .was actually recovered in this case, the well-corroborated testimony of
Bazemore proves beyond a reasonable doubt that Defendant did possess cocaine and did
intentionally deliver that cocaine to Bazemore along with heroin. This conviction did not shock
any sense of justice and should not be disturbed.
• 14
CONCLUSION
Accordingly, the court respectfully recommends that Defendant's judgments of sentence
should be affirmed,
Copies sent o9061sto:
By inter-office mail:
Kevin Steele, Esquire, DA
Robert Falin, Esquire, ADA
By first class mail:
Jaynes Lyons, Esquire
Judicial Secretary