Com. v. Davis, S.

J-S27040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN DAVIS,
Appellant No. 1360 MDA 2015
Appeal from the Judgment of Sentence June 10, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001518-2014
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 25, 2016
Appellant Sean Davis appeals the judgment of sentence entered on
June 10, 2015, by the Honorable Margaret Bisignani Moyle in the Court of
Common Pleas of Lackawanna County. Following a review of the record, we
affirm.1
The trial court set forth the pertinent facts and procedural history
herein as follows:
I. INTRODUCTION/PROCEDURAL HISTORY
____________________________________________
1
In their appellate briefs, the parties purport to appeal from the trial court’s
Order entered on July 29, 2015, denying Appellant’s post-sentence motions;
however, because an order denying post-sentence motions acts to finalize
the judgment of sentence for purposes of appeal, the appeal properly is
taken from the judgment of sentence, not the order denying the motions.
Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa.Super. 1995).
*Former Justice specially assigned to the Superior Court.
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[Appellant] has appealed various rulings made by this
[c]ourt during the course of his trial, as a result of which, on
April 1, 2015, he was convicted of one (1) count of Delivery of a
Controlled Substance, (PA ST 35 P.S. § 780-113 clause 30) one
(1) count of Criminal Use of a Communication Facility, (18
Pa.C.S.A. § 7501(a)) [and] one (1) count of Possession of a
Controlled Substance (PA ST 35 P.S. § 780-113a clause 16).[2]
On June 6, 2015 this court sentenced [Appellant] to an
aggregate term of two years (2) to eight (8) years at a State
Correctional Institute plus.
[Appellant] filed various post-sentence motions, which
included a Motion for Judgment of Acquittal and/or New Trial and
Motion for Reconsideration of Sentence. This Court issued an
Order on July 29, 2015[,] denying [Appellant’s] post-sentence
motions. [Appellant] filed a Notice of Appeal on August 5, 2015.
This Court issued an Order on August 7, 2015, directing
[Appellant] to file a Concise Statement of Matters Complained of
on Appeal Pursuant to Pa.R.A.P. 1025(b) [sic]. [Appellant]
issued his Concise Statement of Matters Complained of on
Appeal on September 23, 2015. The Court will address each
issue per Pa.R.A.P. 1025(a) [sic].
II. FACTUAL HISTORY
The evidence at trial demonstrated as follows:
On May 20, 2014[,] Jennifer Deninno, who had been
arrested that same day for possession of drug paraphernalia,
told Scranton Police Officer Jessica Dinning that she could set up
a drug transaction between herself and a man she knew as
“Snow.” (N.T. 4/1/15 at pg. 75-77). Ms. Deninno gave a
description of “Snow” to Officer Dinning and then sent a text
message to “Snow” to which “Snow” responded by calling Ms.
Deninno’s phone. (N.T. 4/1/15 at pg. 78-82). Through this
communication between “Snow” and Ms. Deninno, it was
established that the pair would meet at the Turkey Hill across
from Scranton High School in order for Ms. Deninno to purchase
a quantity of cocaine. (N.T. 4/1/15 at pg. 81). Ms. Deninno was
then thoroughly searched by Officer Dinning and driven to the
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2
Appellant also was convicted of one count of Use/Possession of Drug
Paraphernalia. 35 P.S. § 780-113(a)(32).
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meeting location in the Officer’s vehicle. (N.T. 4/1/15 at pg.
83).
Upon arrival at Turkey Hill, Ms. Deninno exited Officer
Dinning’s vehicle and walked over to talk to “Snow.” (N.T.
4/1/15 at pg. 87). At one point Ms. Deninno returned to Officer
Dinning’s vehicle to obtain a cigarette for “Snow” before
eventually returning, having obtained $50 worth of crack
cocaine. (N.T. 4/1/15 at pg. 89-90). Ms. Deninno immediately
handed the cocaine over to Officer Dinning and Officer Dinning
performed another search of Ms. Deninno’s person. (N.T. 4/1/15
at pg 92). This entire transaction was photographed by other
members of Officer Dinning’s Unit, with numerous photo’s [sic]
displayed to the Court and the jury. (N.T. 4/1/15 at pg. 99).
Officer Dinning then drove herself and Ms. Deninno back to the
Scranton Police Station where Ms. Deninno looked at pictures in
an effort to ascertain the true identity of “Snow.” Through this
examination, “Snow” was determined to be [Appellant]. (N.T.
4/1/115 [sic] at pg. 109-111).
Once back at the police station, Officer Dinning attempted
to have Ms. Deninno contact [Appellant] again and it was
learned that his phone number was no longer active. (N.T.
4/1/15 at pg. 137-138). Officer Dinning filed an arrest warrant
for [Appellant] on July 1, 2014. (N.T. 4/1/15 at [pg.] 144). On
July 8, 2014, Officer Dinning saw [Appellant] entering the same
Turkey Hill store. (N.T. 4/1/15 at pg. 145). Whereupon, Officer
Dinning followed [Appellant] into the store and arrested him
inside the men’s room. (N.T. 4/1/15 at pg. 145).
Trial Court Opinion Pursuant to Pa.R.A.P. 1925(a), filed 1/19/16, at 1-3.
In his statement of matters complained of on appeal, Appellant raised
thirteen (13) issues. In his appellate brief, Appellant presents the following
nine (9) questions for our review:
A. Whether the trial court erred when it denied [ ] Appellant’s
motion for mistrial and his request to replace juror nine?
B. Whether the trial court erred when it denied Appellant’s
Pre-Trial Motion to Strike the Amended Information since the
Commonwealth improperly sought to reinstitute previously
withdrawn charges on the last business day before vior dire?
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C. Whether the trial court erred when it permitted, over
objection, the introduction of any jailhouse recorded
conversations between [ ] Appellant and his wife for lack of
relevancy, for lack of improper foundation, and for failure to
timely disclose a copy of the jailhouse telephone call in discovery
until the last business day before vior dire?
D. Whether the trial court erred when it allowed the
Commonwealth, without notice to the Appellant, to introduce his
statement concerning prior drug dealings, thereby depriving him
of a fair trial?
E. Whether the trial court erred when it denied [ ] Appellant’s
requested [sic] for Corrupt and Polluted Source Jury Instruction?
F. Whether the trial court erred when it instructed the jury on
constructive possession even though it was not identified in the
Criminal Information?
G. Whether the evidence was sufficient to support the
convictions on all counts?
H. Whether the verdicts were against the weight of the
evidence?
I. Whether the trial court erred when it failed to impose
concurrent sentences since the convictions all arose out of the
same criminal transaction and at the same time?
Brief of Appellant at 4-5.
In his first issue, Appellant argues the trial court erred in denying his
motion for a mistrial due to a juror’s misconduct for her failure to disclose
her fixed opinion of Appellant’s guilt and that all defendants are guilty. Brief
of Appellant at 20-21. Our Supreme Court articulated the well-settled
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standard of review of a trial court’s decision not to grant a mistrial as
follows:
A trial court is required to grant a mistrial only where the alleged
prejudicial event may reasonably be said to have deprived the
defendant of a fair and impartial trial. It is well-settled that the
review of a trial court's denial of a motion for a mistrial is limited
to determining whether the trial court abused its discretion. An
abuse of discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will ... discretion is abused. A trial
court may grant a mistrial only where the incident upon which
the motion is based is of such a nature that its unavoidable
effect is to deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict. A mistrial is not
necessary where cautionary instructions are adequate to
overcome prejudice.
Commonwealth v. Fortenbaugh, 620 Pa. 483, 487, 69 A.3d 191, 193
(2013) (internal quotation marks and citations omitted). In addition, a trial
court’s decision as to whether or not to grant a mistrial should be given
deference when the court personally had an opportunity to question and
observe each juror and made a finding that he or she was credible.
Commonwealth v. McCloskey, 835 A.2d 801, 811-812 (Pa.Super. 2003).
Also, we assume a jury follows the law as properly instructed by the trial
court. Commonwealth v. Coon, 26 A.3d 1159, 1166 (Pa.Super. 2011).
Herein, during a recess prior to deliberations, an alternate juror
alerted the trial court’s law clerk to possible juror misconduct. Specifically,
the alternate juror explained that Juror 9 had made a statement that “I can
never be a defense attorney,” and in response to another juror’s inquiry as
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to why responded “Because everyone I’d be defending is guilty.” N.T.,
4/1/15, at 283-85. The alternate juror explained that the reaction of the
other jurors who had heard the comment was “almost a unanimous response
of disbelief of what was just said.” Id. at 286. An on-the-record discussion
with counsel ensued at which time defense counsel moved for a mistrial. Id.
at 288. A sidebar discussion took place off the record following which the
trial court proceeded to conduct an individual voir dire of each juror starting
with Juror 1 in an effort to ascertain who had actually heard the statement
and its effect upon him or her, if any. While some jurors indicated they had
heard the remark, all of them testified under oath they could remain fair and
impartial in their deliberations and would be able to follow any additional
instruction from the court. Id. at 289-331.
When the trial court asked Juror 9 to explain the meaning behind her
comment, she stated she jokingly had made the remark in the context of
how difficult the legal profession is. Id. at 315-316. She further explained
that she did not espouse the notion that all defendants are guilty and
indicated her belief that one needs to be proven guilty before he or she can
be considered so. Id. at 316-317. She assured the trial court that she had
answered the questions regarding her partiality during voir dire correctly and
sated “I’m listening to all of the facts. I’m listening to what is going on and
I’m going to make my judgment by what goes on in that witness stand,
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what’s presented for both sides, and just go from there. It was just a joke.”
Id. at 318.
Following additional argument and discussion with counsel on the
record, the trial court denied defense counsel’s request for a mistrial or in
the alternative that Juror 9 be excused. Instead, the trial court provided the
following curative instruction to the entire panel in open court:
THE COURT: Ladies and gentlemen, please be seated. I
asked you to come in here because I just wanted to say one final
thing about this matter and then put this matter to rest. Okay.
Now, you all know the reason for the individual questioning
of the jurors. And it’s unfortunate that the process takes a long
time, but I’m required by law to speak to you each, individually.
So, what I would like to do, now, is just advise you that, what I
would like you to do is go back into the jury deliberation room,
resume your deliberations, and to set aside the events of the
individual questioning and the events of the conversation that
lead to the individual questioning. Are you all able to do that?
THE JURORS: Yes.
THE COURT: Everyone is nodding in the affirmative. So,
with that, I am going to send you, now, back into the jury
deliberation room and I’m going to ask you to follow all of my
instructions and deliberation fairly and impartially, considering
only the evidence that was presented in the courtroom. Okay.
N.T., 4/1/15, at 339-340.
Upon our review of the record, we find the trial court did not abuse its
discretion in deciding not to grant a mistrial or to remove Juror 9. As the
aforementioned excerpts from the notes of testimony evince, there was no
indication that Appellant had been deprived of his right to a fair and
impartial trial as a result of the statement Juror 9 explained she had made in
jest. While some jurors testified they never heard the comment, all of those
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who did hear it stated it in no way affected their ability to be fair and
impartial. Moreover, the trial court personally colloquied each juror
regarding the remark and provided an additional instruction to disregard the
statement and to deliberate fairly and impartially while considering only the
evidence presented during trial. “When the trial court provides cautionary
instructions to the jury in the event the defense raises a motion for a
mistrial, the law presumes that the jury will follow the instructions of the
court.” Commonwealth v. Brown, 567 Pa. 272, 279, 786 A.2d 961, 971
(2001) (citation omitted), cert. denied, 537 U.S. 1187 (2003). As such, this
claim is without merit.
Appellant next contends the trial court erred in denying his pretrial
motion to strike the Amended Information wherein the Commonwealth
sought to reinstitute charges it had previously withdrawn. Appellant submits
Pa.R.Crim.P. 561(B)3 is controlling herein; therefore, the Commonwealth
____________________________________________
3
Entitled “Withdrawal of Charges by Attorney for the Commonwealth” this
rule reads as follows:
(A) After a case is held for court, at any time before the
information is filed, the attorney for the Commonwealth may
withdraw one or more charges by filing notice with the clerk of
courts.
(B) Upon the filing of the information, any charge not listed on
the information shall be deemed withdrawn by the attorney for
the Commonwealth.
(C) In any case in which all the misdemeanor, felony, and
murder charges are withdrawn pursuant to this rule, any
remaining summary offenses shall be disposed of in the court of
common pleas.
(Footnote Continued Next Page)
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having voluntarily withdrawn charges should not be permitted to reinstitute
the same charges without seeking leave of court before doing so, which he
claims the Commonwealth failed to do. Brief of Appellant at 28.
Pa.R.Crim.P. 564 provides that “[t]he court may allow an information
to be amended when there is a defect in form, the description of the
offense(s), the description of any person or any property, or the date
charged, provided the information as amended does not charge an additional
or different offense.” Pa.R.Crim.P. 564. In Commonwealth v. Sinclair,
897 A.2d 1218 (Pa.Super. 2006), this Court stated that when presented with
a challenge to the propriety of an amendment, we must consider:
[w]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified in the
amended indictment or information. If so, then the defendant is
deemed to have been placed on notice regarding his alleged
criminal conduct. If, however, the amended provision alleges a
different set of events, or the elements or defenses to the
amended crime are materially different from the elements or
defense to the crime originally charged, such that the defendant
would be prejudiced by the change, then the amendment is not
permitted.
***
In reviewing a grant to amend an information, [this] Court will
look to whether the appellant was fully apprised of the factual
scenario which supports the charges against him. Where the
crimes specified in the original information involved the same
basic elements and arose out of the same factual situation as the
crime added by the amendment, the appellant is deemed to
_______________________
(Footnote Continued)
Pa.R.Crim.P. 561.
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have been placed on notice regarding his alleged criminal
conduct and no prejudice to defendant results.
Id. at 1221-22 (citations omitted). Relief is proper only where the
amendment prejudices a defendant, and when determining whether an
amendment results in prejudice, this Court considers:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds
new facts previously unknown to the defendant; (3)
whether the entire factual scenario was developed during
a preliminary hearing; (4) whether the description of the
charges changed with the amendment; (5) whether a
change in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for
ample notice and preparation.
Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015).
Appellant originally had been charged with four crimes: Delivery of a
Controlled Substance, Criminal Use of a Communication Facility, Possession
of a Controlled Substance and Possession of Drug Paraphernalia on July 1,
2014. All of these charges were waived to court at the time for Appellant’s
preliminary hearing. Thereafter, Appellant reached a plea agreement with
the Commonwealth whereby Appellant was to plead guilty to one count of
Delivery of a Controlled Substance and the Commonwealth would nolle pros
the remaining charges. Reflecting this agreement, the Commonwealth filed
a Criminal Information that contained the Delivery of a Controlled Substance
charge, 35 P.S. § 780-113(a)(30) only. However, Appellant later decided
not to enter a guilty plea and chose instead to proceed to trial. N.T.,
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3/30/15 at 16-18. As such the Commonwealth filed its Amended
Information on March 27, 2015, wherein it additionally charged Appellant
with Criminal use of Communication Facility, 18 Pa.C.S.A. § 7512(a),
Possession of a Controlled Substance, 35 P.S. § 780-113(a)(16), and
Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32).
Contrary to Appellant’s claims in his appellate brief, the
Commonwealth sought and received permission from the trial court to
amend the information. Prior to the start of trial, the trial court informed
Appellant on the record that it had heard argument from both parties
concerning whether the Commonwealth should be permitted to amend the
information and indicated defense counsel had articulated “some very
interesting arguments” on his behalf. N.T., 4/1/15, at 20-21; N.T., 3/30/15,
at 10-18. After twice stating it would allow the Commonwealth to amend
the information, the trial court informed Appellant of his right to be notified
of the charges brought against him and that he had received such notice
when the Amended Information was filed. N.T., 4/1/15, at 20-21. The trial
court further found that the factual basis for each charge had been included
in the affidavit of probable cause and the criminal complaint which placed
Appellant on notice from the outset of the proceeding. Id. at 22.
Appellant also maintains he was prejudiced by the Commonwealth’s
filing of the Amended Information without seeking leave of the trial court to
reinstate charges it voluntarily had withdrawn “upon its own election and
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action.” Brief of Appellant at 27-29. In addition, he baldly posits that, at a
minimum, the charge of Criminal Use of Communication Facility set forth in
the Amended Information introduced a different event. Id. at 30. To the
contrary, the trial court found that as the Commonwealth filed its Amended
Information listing all of the original charges arising out of the same factual
situation only after Appellant decided not to plead guilty as per the terms of
the plea bargain, Appellant was on notice of those charges. Trial Court
Opinion, filed 1/19/16, at 13. After our review of the record, we agree.
In challenging the Commonwealth’s filing of an Amended Information
on the grounds that in doing so it effectively reinstituted charges it
previously had withdrawn, Appellant misconstrues the purpose of a criminal
information which is to apprise a defendant of the charges that have been
brought against him so that he may prepare a proper defense.
Commonwealth v. Brown, 556 Pa. 131, 135, 727 A.2d 541, 543 (1999).
Moreover, Appellant chose not to take advantage of the trial court’s offer to
grant him a continuance and for a preliminary hearing on each charge to
cure any perceived disadvantage caused to him by the Commonwealth’s
filing of an Amended Information. Appellant knew he initially was facing
four charges arising out of the May 20, 2014, drug transaction with Ms.
Deninno and agreed to plead guilty to one of them so that the others would
be nolle prossed. As such, the Commonwealth withdrew the remaining
charges pursuant to a plea agreement with which Appellant did not follow
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through. The Amended Information simply placed Appellant back in the
position he had been in before he entered into the agreement with the
Commonwealth and the charges were reinstituted as a result of his own
decision not to enter a guilty plea. On this issue, our Supreme Court has
stated the following:
When the defendant's own action prevents adjudication of the
greater charges, it is absurd to suggest that, in the event the
defendant reneges on his plea agreement, the government has
relinquished its right to prosecute on those charges. The
government simply has made a bargain which it is obligated to
keep only so long as the defendant is willing to abide by its
terms. When a defendant abrogates a plea agreement, he
resumes his preagreement status, and the government may
proceed on the original charges as if the agreement had never
existed.
***
A “mutuality of advantage” to defendants and prosecutors flows
from the ratification of the bargain. When a defendant withdraws
or successfully challenges his plea, the bargain is abrogated and
he must be prepared to accept all of the consequences which the
plea originally sought to avoid.
Commonwealth v. Ward, 493 Pa. 115, 124-25, 425 A.2d 401, 406 (1981)
(citation omitted).
In addition, the amendments did not add any additional facts unknown
to Appellant. Rather, they involved the “same basic elements and arose out
of the same factual situation” as the original information. See Sinclair, 897
A.2d at 1222. Under such circumstances where there is no showing of
prejudice, an amendment of an information on the day of trial to add an
additional charge has been deemed to be proper. Id. at 1223. Furthermore,
Appellant nowhere argues the Amended Information required him to change
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his defense, and the trial court provided him with an opportunity for a
continuance, which he declined to accept. As such, Appellant’s contention
he was prejudiced because he did not have adequate time to prepare for
trial since the amendment occurred one business day before trial lacks
merit.
Appellant’s third issue questions whether the trial court erred when it
permitted the jury to consider a telephone conversation between Appellant
and his wife recorded when Appellant was incarcerated. Appellant maintains
that although the telephone call was made on October 28, 2014, the
transcript thereof was not provided to him until March 27, 2015, the last
business day before trial and this late disclosure violated Pa.R.Crim.P.
573(D).4 Also, Appellant asserts the content of the recorded conversation
was neither relevant nor material to any allegation in the case and that it
had not been properly authenticated. Brief of Appellant at 31-33, 35.
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4
This Subsection provides:
(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.
Pa.R.Crim.P. 573(D).
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In reviewing a trial court’s ruling on the admissibility of evidence, this
Court’s standard of review is one of deference. Commonwealth v.
Selenski, 18 A.3d 1229, 1232 (Pa.Super. 2011), vacated in part on other
grounds, 92 A.3d 766 (Pa. 2014). Questions concerning the admissibility of
evidence are within the sound discretion of the trial court, and the court’s
discretion will not be reversed absent a clear abuse of discretion.
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005) (internal
citations and quotation marks omitted), appeal denied, 928 A.2d 1289 (Pa.
2007). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Id. Furthermore, “if
in reaching a conclusion the trial court over-rides [sic] or misapplies the law,
discretion is then abused and it is the duty of the appellate court to correct
the error.” Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.
2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).
Pertaining to the recorded jailhouse conversation between Appellant
and his wife, the district attorney represented that he had listened to hours
of recorded conversations in which Appellant had participated before he
came upon the conversation at issue. He explained the moment he received
the transcript of the call he turned it over to Appellant, and Appellant did not
object to this representation. N.T., 3/30/15, at 7-8. In addition, the trial
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court afforded Appellant an opportunity to request a continuance to further
consider this evidence, and Appellant declined. Id. As such, the trial court
did not abuse its discretion in finding the Commonwealth did not violate
Pa.R.Crim.P. 573(D).
Appellant next challenges the relevancy of the contents of the
recorded conversation. While the notes of testimony reflect a pre-recorded
call was played in open court, See N.T., 4/1/15, at 215, the specific contents
of that call was not transcribed as part of the trial transcript; however, a
transcript of the conversation is contained in the certified record.
Transcribed on March 27, 2015, by Nicole M. Avvisato of the Lackawanna
County District Attorney’s Office, the entirety of the conversation reads as
follows:
With: Sean Davis: S; Female
S: I already wrote you and told you sh[--] going around
the whole jail. This nig[--]’s telling.
:That who?
S: This nig[--] telling.
: Hmm.
S: Yeah. He’s trying to get out of here. He’s got his girl
helping him.
: Umm hmm.
: That’s crazy.
S: Word. That’s why I told you don’t, you know; don’t
answer for her and sh[--] like that.
S: Cause you never know.
: I told her.
S: I don’t think it’s his child’s mother, though. I think it’s
his girlfriend. I’m not sure so just.
: Um, yeah. You know his child’s mother ain’t doing that.
She’s got kids and all that.
S: Yeah.
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: She ain’t stupid. And she ain’t doing sh[--] like that for
him.
S: Yeah, right.
: At least, I wouldn’t think.
S: Right. That’s what I’m saying. We wouldn’t think. I
wouldn’t think a lot of sh[--] but-
:What?
S: It is what it is. I don’t think he would, you know?
Didn’t think Jen. Didn’t think, you know what I mean? A
lot of people. And it is, so. Thing is we need to stop not
thinking and start thinking. Everybody telling. Fu[--] that.
Anybody doing something wrong, eventually they’re gonna
be telling cause they’re gonna get caught up, so. That’s
what I don’t like. But, anyway. How was your day today?
Pa.R.E. 401(a) provides that relevant evidence is that which “has any
tendency to make a fact more or less probable than it would be without the
evidence.” Pa.R.E. 401(a). Prior to trial, the trial court explained the
contents of the conversation at issue as follows: “He’s having a
conversation with his wife about people who help themselves by cooperating
with the police. And he’s explaining to her that this guy in jail is doing it
now . . . he said he didn’t think Jen, meaning – I take it to mean what the
inference is, is he didn’t think Jen was cooperating.” N.T., 4/1/15, at 15.
The trial court reasoned that the Commonwealth was entitled to argue to the
jury that it could infer something from Appellant’s words, and Appellant
could argue another inference from the statement was proper. The court
further reasoned that any challenge to such inferences would pertain to the
weight of the evidence, not to its admissibility. Id. at 17-19.
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In response, Appellant indicated “I’ll make the argument.”
Notwithstanding, prior to the Commonwealth’s introduction of the recorded
call into evidence at trial, Appellant objected only as to authentication, not to
its relevancy. N.T. 4/1/15, at 209. As such, Appellant has waived this
portion of his argument for failure to raise specific objection at trial. See
Commonwealth v. Baumhammers, 599 Pa. 1, 41, 960 A.2d 59, 84
(2008) (stating “the absence of a specific contemporaneous objection
renders the appellant’s claim waived”); See also Commonwealth v.
Akbar, 91 A.3d 227, 235 (Pa.Super. 2014) (reversed on other grounds)
(finding that where defendant argued on appeal trial court admitted two
audio tapes without giving him the opportunity to confront the individuals
thereon in violation of the confrontation clause but at trial specifically
objected only to admission of these tapes as hearsay defendant waived his
confrontation clause argument on appeal).
Even if this issue were not waived, Appellant’s claim is speculative at
best. Appellant makes no proffer as to how the admission of this evidence
prejudiced him. To the contrary, in his brief Appellant admits the call
“merely indicated that the substance of Appellant’s communications is
consistent with his innocence, and his unhappiness with the confidential
informant” and that “the substance of Appellant’s statements and
communications to his wife are essentially ambiguous statements.” Brief of
Appellant at 33 (emphasis added).
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Finally, Appellant contends the Commonwealth failed to lay a proper
foundation for or to authenticate the phone call before it was admitted into
evidence at trial. A recorded telephone conversation must be properly
authenticated before it is admitted into evidence. Pa.R.E. 901.
Circumstantial evidence which tends to corroborate the identity of the
sender, in addition to the confirmation that a number or address belonged to
a particular person, is required for the authentication of electronic
communications. Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa.Super.
2011).
Herein, the Commonwealth presented the testimony of Captain Robert
McGuire, the Intelligence Captain at the Lackawanna County Prison where
Appellant had been incarcerated at the time the phone call had been
recorded. Captain McGuire explained that he was a records custodian for
purposes of phone calls at the prison and among his duties was answering
subpoenas or other requests for inmate phone calls. N.T., 4/1/15, at 206,
211. Captain McGuire revealed that each prisoner is issued a pin number to
be utilized when making phone calls and all phone calls are identified, stored
and recorded with that number in the ordinary course of business at the
prison. Id. at 207-210. Captain McGuire testified he is one of three
individuals working inside the prison who can extract inmate phone calls,
download them and burn them onto a disc at the request of attorneys. Id.
at 207-08. Captain McGuire stated such conversations are recorded on a
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system, and a company with whom the prison is contracted places all calls
into a data base and maintains the information. Id. at 207.
After receiving a request for recordings made on a certain date or
during a given period of time, Captain McGuire enters the date(s) along with
the inmate’s name, after which a list of call(s) that have been recorded and
downloaded is revealed. Captain McGuire related that he then burns the
telephone call(s) to a disc and presents the information to the requesting
agency or attorney. Id. at 208. Captain McGuire identified the transcripts
of phone calls Appellant made from July 25, 2014, to March 9, 2015, and
two discs to which those calls had been burned. Id. at 211. Captain
McGuire explained that every call is assigned a unique identification number,
and he played for the jury the aforementioned excerpt from what he
identified as call number 1389211 that had been made to phone number
570-604-7927 on October 28, 2014. Id. at 214-215. Captain McGuire also
clarified that prior to each call, an inmate hears a recording that his or her
phone call may be monitored and recorded. Id. at 219.
Appellant reasons that as the call was stored through a remote system
and the Commonwealth did not call any witnesses from the outside company
to lay a foundation for the call, there was insufficient evidence to show the
call logs were authentic or that it was he speaking on the recording, as
Captain McGuire did not personally maintain the recording or data storage
devices and has no personal knowledge of Appellant’s voice. Brief of
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Appellant at 36. We disagree, for the testimony of Captain Mcguire is
sufficient to establish a proper chain of custody for the recorded
conversation and the identity of the speaker. See Commonwealth v.
Hudson, 489 Pa. 620, 414 A.2d 1381, 1387 (1980) (citations omitted)
(stating “[e]very hypothetical possibility of tampering need not be
eliminated; it is sufficient that the evidence, direct or circumstantial,
establishes a reasonable inference that the identity and condition of the
exhibit remained unimpaired until it was surrendered to the trial court.”). As
such, we find the recorded conversation between Appellant and his wife was
properly authenticated, and for all of the foregoing reasons, he is not
entitled to relief on this issue.
Appellant next argues the trial court’s permitting Officer Dinning to
testify concerning a statement Appellant made about his prior drug dealing
deprived him of his right to a fair trial. This argument stems from a
response Officer Dinning provided on direct examination to a query as to
whether she had ever discussed the nature of the charges against Appellant
at the time of his arrest. Officer Dinning indicated that when she informed
Appellant he was being arrested for, inter alia, delivery of crack cocaine, he
replied: “It couldn’t have been [me] because [I] haven’t sold crack cocaine
in a year.” N.T., 4/1/15, at 146. Defense counsel did not object to this
testimony at trial. See id.- 21 -
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Instead, on cross-examination, defense counsel specifically questioned
Officer Dinning regarding her interaction with Appellant as follows:
Defense Counsel: Okay. Now, did you advise him that he was
under arrest for dealing drugs on May 20th?
Officer Dinning: Yes.
Defense Counsel: And he said to you, “that wasn’t me. I
haven’t dealt drugs in over a year?”
Officer Dinning. Yes.
Defense Counsel: Okay. Now, so, he denied dealing drugs on
May 20th?
Officer Dinning. Yes. The dealing of the drugs on May 20th he
had denied, but the previous ones he didn’t.
Defense Counsel: All right. Well, he wasn’t being –whelp[sic],
there was no investigation about anything he did a year ago.
This was on May 20th?
Officer Dinning: This was May 20th. That’s what he had stated.
Defense Counsel: Right. And he denied dealing drugs on May
20th?
Officer Dinning: On that particular day, yes, he denied selling
drugs.
N.T., 4/1/15, at 173-174.
It is well-settled that a defendant must make a timely and specific
objection at trial or face waiver of her issue on appeal. Pa.R.A.P. 302(a)
(stating: “Issues not raised in the [trial] court are waived and cannot be
raised for the first time on appeal”); Commonwealth v. Duffy, 832 A.2d
1132 (Pa.Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 816 (2004)
(holding party must make timely and specific objection at trial to preserve
issue for appellate review). Consequently, Appellant has waived this
allegation of trial court error on appeal. Commonwealth v. Schoff, 911
A.2d 147, 158 (2006).
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Appellant’s fifth and sixth questions pertain to the trial court’s jury
instructions. We review challenges to jury instructions as follows:
[O]ur scope of review is to determine whether the trial court
committed clear abuse of discretion or error of law controlling
the outcome of the case. Error in a charge is sufficient ground
for a new trial, if the charge as a whole is inadequate or not
clear or has a tendency to mislead or confuse rather than clarify
a material issue. A charge will be found adequate unless “the
issues are not made clear to the jury or the jury was palpably
misled by what the trial judge said or unless there is an omission
in the charge which amounts to fundamental error.” A reviewing
court will not grant a new trial on the ground of inadequacy of
the charge unless there is a prejudicial omission of something
basic or fundamental. In reviewing a trial court's charge to the
jury, we must not take the challenged words or passage out of
context of the whole of the charge, but must look to the charge
in its entirety.
McManamon v. Washko, 906 A.2d 1259, 1271 (Pa.Super. 2006) (citations
omitted).
First, Appellant argues the trial court erred in denying his request for
an instruction as to the credibility of an accomplice, otherwise known as a
“corrupt and polluted source” instruction. In doing so, Appellant submits
that Ms. Dennino was an accomplice as set forth in 18 Pa.C.S.A. §
306(b)(3)5 who essentially solicited him to deliver a controlled substance,
____________________________________________
5
This Subsection states:
(b) Conduct of another.--A person is legally accountable for
the conduct of another person when:
***
(3) he is an accomplice of such other person in the commission
of the offense.
(Footnote Continued Next Page)
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and, as such, is legally accountable for his alleged illegal conduct. In
support of this theory, Appellant relies upon this Court’s decision in
Commonwealth v. Donohue, 630 A.2d 1238 (Pa.Super. 1993) wherein we
held the trial court had erred in ostensibly denying defense counsel’s verbal
request at sidebar for a corrupt source instruction where counsel failed to
submit a written charge after the trial court concluded instructing the jury.
Id. at 1246. Brief of Appellant at 41-42.
In the matter sub judice, prior to closing arguments, the trial court
rejected Appellant’s request that it provide a corrupt and polluted source
instruction and in doing so explained:
THE COURT: based on the case law that I’ve had the
opportunity to review and the arguments of counsel—I did
review your case on Monday and after and now I’m here with
[Commonwealth v. Donohue 630 A.2d 1238 (Pa. Super.
1993)] in front of me. And I am looking at it trying to
determine, factually, you know, if it’s similar or not.
I’m going to rule that the jury instructions for accomplice
should not be given, so your request is denied.
N.T., 4/1/15, at 197-198. Counsel did not object or take exception to this
ruling. Following the jury charge, the court inquired of counsel whether
there were any “exceptions, corrections, or additions” to the charge; defense
counsel responded in the negative.
_______________________
(Footnote Continued)
18 Pa.C.S.A. § 306(b)(3).
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It is well-settled that to preserve a challenge to a particular jury
instruction, a defendant must make a specific and timely objection, and his
failure to do so results in waiver. See Pa.R.Crim.P. 647(B) (“No portions of
the charge nor omissions from the charge may be assigned as error, unless
specific objections are made thereto before the jury retires to deliberate.”)
see also Pa.R.A.P. 302(b) (“A general exception to the charge to the jury
will not preserve an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”); Pa.R.A.P. 603(A), (B) (abrogating
the necessity of taking an exception to a trial court’s ruling during trial but
specifically excluding issues related to jury instructions). Furthermore, a
defendant generally waives subsequent challenges to the propriety of the
jury charge on appeal if he responds in the negative when the court asks
whether additions or corrections to a jury charge are necessary.
Commonwealth v. Charleston, 16 A.3d 505, 527-28 (Pa.Super. 2011).
The pertinent rules, therefore, require a specific objection to the
charge or an exception to the trial court's ruling on a proposed
point to preserve an issue involving a jury instruction. Although
obligating counsel to take this additional step where a specific
point for charge has been rejected may appear counterintuitive,
as the requested instruction can be viewed as alerting the trial
court to a defendant's substantive legal position, it serves the
salutary purpose of affording the court an opportunity to avoid
or remediate potential error, thereby eliminating the need for
appellate review of an otherwise correctable issue. This is
particularly so where a judge believes that the charge
adequately covered the proposed points. Moreover, charging
requests are frequently submitted in advance of or during trial,
with the relevance or necessity of a proposed instruction being of
different significance as a result of subsequent events. See
generally United States v. Crowley, 318 F.3d 401, 412-13
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(2d Cir.2003) (emphasizing that “[t]he distinction between
requests to charge and specific objections at a charging
conference is significant[,]” and discussing the rationale for the
specific objection requirement). Similarly, a judge's perspective
concerning a particular point may be altered based upon a
party's arguments. See generally id.***
We hold that under Criminal Procedural Rules 603 and 647(B),
the mere submission and subsequent denial of proposed points
for charge that are inconsistent with or omitted from the
instructions actually given will not suffice to preserve an issue,
absent a specific objection or exception to the charge or the trial
court's ruling respecting the points.
Commonwealth v. Pressley, 584 Pa. 624, 630-32, 887 A.2d 220, 224-25
(2005) (some citations and footnotes omitted). In light of the foregoing
and after our review of the record, we conclude Appellant failed to preserve
this issue for appellate review. For the reasons that follow, we reach the
same conclusion with regard to Appellant’s challenge to the trial court’s
standard instruction on constructive possession.
The record reveals that on direct examination, Ms. Deninno testified
Appellant did not hand the controlled substance to her after she provided
him with the buy money, but instead instructed her to reach into a
compartment on the left-hand side of the steering wheel of the car he was
driving and pick it up herself. N.T. 4/1/15 at 89-90. Appellant did not make
a timely objection to this statement. Id. The trial court concluded that as
the Commonwealth was required to prove Appellant knowingly or
intentionally possessed cocaine under 35 P.S. § 780-113(a)(16), and that
such possession may be proven by showing actual or constructive
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possession, “[t]he factual scenario presented is exactly the type
contemplated by the constructive possession jury instruction.” Trial Court
Opinion, filed 1/20/16, at 14.
Further review of the record confirms the trial court provided Appellant
with three opportunities to request any “exceptions, corrections, or
additions” to its charge to the jury before the jury retired to deliberate,
although he did not do so. See N.T., 4/1/15, at 277, 280, 282. Because
Appellant did not object to the trial court’s constructive possession
instruction, he has waived his challenge to the constructive possession
instruction. See Pa.R.Crim.P. 647 (B); see also Commonwealth v.
Forbes, 867 A.2d 1268, 1274 (Pa.Super. 2005) (finding appellant waived
his challenge to the court’s instruction on the elements of burglary where he
did not object to that charge) (citing Commonwealth v. McCloskey, 835
A.2d 801, 812 (Pa.Super. 2003) (holding that a specific and timely objection
must be made to preserve a challenge to a particular instruction; failure to
object results in waiver)).
In his seventh and eighth issues, Appellant generally avers the
evidence at trial was insufficient to support the convictions on all counts and
that the verdicts were against the weight of the evidence, respectively. We
conclude he has waived these issues for appellate review.
Issues not raised in a statement filed pursuant to Pa.R.A.P. 1925(b)
are deemed waived for appellate review. Commonwealth v. Castillo, 585
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Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998)). However, the mere inclusion of an issue in a
1925(b) statement is not sufficient to overcome waiver, for an appellant
must state the assigned error with specificity in the concise statement in
order for that issue to be addressed on appeal. Commonwealth v.
Dowling, 778 A.2d 683 (Pa.Super. 2001). By its plain text, Rule 1925(b)
requires that concise statements “identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii); see also Commonwealth
v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006) (stating “[w]hen a court has to
guess what issues an appellant is appealing, that is not enough for
meaningful review[]”). Our Supreme Court has made clear that Rule
1925(b) is a bright-line rule. Commonwealth v. Hill, 609 Pa. 410, 427, 16
A.3d 484, 494 (2011). This is so even where trial court guesses the issues
and discusses them in 1925(a) opinion.
Additionally, when considering a generic allegation in the appellant’s
statement of matters complained of on appeal that “[t]he evidence was
legally insufficient to support the convictions” this Court has stated:
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as
here, the appellant was convicted of multiple crimes each
of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.
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Here, as is evident, Appellant not only failed to specify which
elements he was challenging in his Rule 1925(b) statement, he
also failed to specify which conviction he was challenging. Thus,
we find Appellant's sufficiency claim waived on this basis.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013) (internal
quotation marks and citations omitted; emphasis added).
Instantly, Appellant’s assertions in his Rule 1925(b) statement
regarding the sufficiency and weight of the evidence presented at trial baldly
question: “Whether the evidence was sufficient to support the convictions
on all counts?” and “Whether the verdicts were against the weight of the
evidence?” Appellant’s Concise Statement of Matters Complained of on
Appeal, 9/23/15, at ¶¶ J, K. These challenges lack clarity and sufficient
specificity to enable a court meaningfully to address those claims. As such,
these boilerplate allegations are vague and waived for appellate purposes.
See Reeves, supra.Appellant’s final issue relates to the discretionary aspects of his
sentence. Prior to considering this claim, we note that:
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super. 2007) (citation
omitted).
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The right to appellate review of the discretionary aspects of a sentence
is not absolute and must be considered a petition for permission to appeal.
Id. at 518. An appellant must satisfy a four-part test to invoke this Court's
jurisdiction when challenging the discretionary aspects of a sentence to
determine: “(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant's brief has a fatal
defect; and (4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265–66 (Pa.Super. 2014)
(citations omitted).
Herein, Appellant filed a timely notice of appeal and has preserved this
issue in a post-sentence motion. Appellant also has included a Pa.R.A.P.
2119(f) statement in his appellate brief. Therefore, we must next determine
whether Appellant has raised a substantial question.
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the
sentencing process. At a minimum, the Rule 2119(f) statement
must articulate what particular provision of the code is violated,
what fundamental norms the sentence violates, and the manner
in which it violates that norm.
Commonwealth v. Mastromarino, 2 A.3d 581, 585–86 (Pa.Super. 2010)
(citation omitted).
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In his Rule 2119(f) statement, Appellant argues a substantial question
exists “due to the trial court’s failure to impose concurrent sentences on the
deliver and CUCF charges since they all arose out of a continuing criminal
transaction.” Brief of Appellant at 19. This Court has stated that:
the imposition of consecutive rather than concurrent sentences
lies within the sound discretion of the sentencing court.
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa.Super. 2005)
(citing Commonwealth v. Hoag, 445 Pa.Super. 455, 665 A.2d
1212, 1214 (1995)). Long standing precedent of this Court
recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court
discretion to impose its sentence concurrently or consecutively
to other sentences being imposed at the same time or to
sentences already imposed. Commonwealth v. Marts, 889
A.2d 608, 612 (Pa.Super. 2005) (citing Commonwealth v.
Graham, 541 Pa. 173, 661 A.2d 1367, 1373 (1995)). A
challenge to the imposition of consecutive rather than concurrent
sentences does not present a substantial question regarding the
discretionary aspects of sentence. Lloyd, 878 A.2d at 873. “We
see no reason why [a defendant] should be afforded a ‘volume
discount’ for his crimes by having all sentences run
concurrently.” Hoag, 665 A.2d at 1214. Commonwealth v.
Johnson, 961 A.2d 877, 880 (Pa.Super.2008) (citations
modified).
Commonwealth v. Zirkle, 107 A.3d 127, 132-34 (Pa.Super. 2014),
reargument denied (Feb. 17, 2015), appeal denied, 117 A.3d 297 (Pa.
2015).
This Court also has held that a sentence may be so manifestly
excessive that it creates a substantial question. Commonwealth v. Moury,
992 A.2d 162, 171–72 (Pa.Super. 2010). When determining whether a
substantial question has been raised, we have focused upon “whether the
decision to sentence consecutively raises the aggregate sentence to, what
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appears upon its face to be, an excessive level in light of the criminal
conduct in this case.” Mastromarino, 2 A.3d at 588 (quoting
Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa.Super.
2010)).
Appellant received an aggregate sentence of two (2) years to eight (8)
years in prison. He was sentenced to one (1) year to four (4) years in
prison on the Delivery of a Controlled Substance conviction and one (1) year
to four (4) years on the Criminal Use of Communication Facility conviction to
run consecutively thereto. His Possession of a Controlled Substance
conviction merged with the Delivery of a Controlled Substance conviction
and his six (6) month to twelve (12) month sentence on the Possession of
Drug Paraphernalia charge ran concurrently to the delivery conviction. The
trial court explained it imposed consecutive sentences for the Delivery of a
Controlled Substance and the Criminal Use of Communication Facility
convictions because each offense comprised a separate and distinct crime.
Trial Court Opinion, filed 1/19/16 at 18. This sentence is not so manifestly
excessive as to raise a substantial question in light of Appellant’s criminal
conduct. As such, we find Appellant has not raised a substantial question.
Zirkle, 107 A.3d at 134.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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