Com. v. Crosby, D.

J-S53024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESHUNA CROSBY,
Appellant No. 231 WDA 2014
Appeal from the Judgment of Sentence of January 10, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000941-2013
BEFORE: DONOHUE, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 30, 2014
Appellant, Deshuna Crosby,1 appeals from the judgment of sentence
entered on January 10, 2014, following her jury trial convictions for two
counts each of possession with intent to deliver a controlled substance
(PWID) and possession of a controlled substance, and one count each of
endangering the welfare of a child, possession of drug paraphernalia, and
conspiracy.2 We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
____________________________________________
1
Appellant was tried jointly with her co-defendant, Michael Ray James.
James is currently appealing his judgment of sentence in a companion case,
318 WDA 2014.
2
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A.
§ 4304, 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. § 903, respectively.
*Retired Senior Judge assigned to the Superior Court.
J-S53024-14
On February 12, 2013, Appellant and a co-conspirator,
Michael Ray James, were found by the U.S. Marshall’s
Fugitive Task Force in Room 327 of the Wyngate Hotel in
Summit Township[, Pennsylvania]. The Task Force was
serving an arrest warrant on James after receiving a tip that
James was at the hotel.
When the Task Force arrived to serve the arrest
warrant, the officers knocked and announced their
presence. After a short delay, James answered the door,
stepped into the corridor and was placed in handcuffs.
Still inside the hotel room was Appellant and her four-
month old infant. James claims to be the father of the
child. The officers directed Appellant to step into the
hallway. Appellant initially ignored the request, walked
back into the room, picked up [a] car seat with the infant
[in it], a baby bag and a coat. Appellant then exited the
room with the baby and other items.
Appellant was asked whether she had anything illegal or
any weapons. Appellant denied possession of anything
illegal and denied having weapons. Appellant began
voluntarily emptying her pockets. The officers asked her if
they could search the car seat. Appellant [] lifted the baby
from the car seat. In the car seat, the officers found three
baggies of white and/or tan substances later identified as
53.6 grams of heroin and 128.9 grams of cocaine. There
were two bags of cocaine and one bag of heroin.
When James realized the drugs were discovered, he
exclaimed, “-- those aren’t hers. They’re mine. That’s not
hers. It’s mine.” At trial, James testified that he knew the
drugs were in the room and admitted that he was in
possession of the drugs. James admitted to being a drug
dealer of marijuana.
Upon a search of her person, the police found almost
$2[,]600.00 hidden inside Appellant’s bra. Appellant was
unemployed. Appellant was in the Erie County Prison Work
Release Program and only had permission to leave the
prison to apply for jobs on that day.
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A digital scale used for weighing drugs and plastic
baggies used for packaging drugs were found in plain view
in the hotel room on top of the microwave. No drug
paraphernalia for immediate use of the drugs was found in
the hotel room or on the person of Appellant or James.
Appellant denied using the drugs which were found or
possessing any paraphernalia for drug usage. There was no
evidence found to suggest that any other persons had been
in the room using the drugs as opposed to selling them.
After a [joint] jury trial [with co-conspirator James] on
November 12th and 13th, 2013, Appellant was found guilty
[of the aforementioned charges].
* * *
Appellant was sentenced on January 10, 2014 [to an
aggregate sentence of 7½ - 16 years of imprisonment].
Appellant filed a [m]otion to [r]econsider [s]entence which
was denied by [o]rder on January 13, 2014. A [n]otice of
[a]ppeal was filed [on] February 6, 2014. Appellant filed a
[Pa.R.A.P.] 1925(b) [c]oncise [s]tatement of [errors] on
[a]ppeal on February 25, 2014.
Trial Court Opinion, 3/25/2014, at 1-3 (record citations omitted).3
On appeal, Appellant presents the following issues for our review:
1. The [trial] court erred in denying [Appellant’s] pretrial
motions when it ruled that the police did not violate
[Appellant’s] constitutional rights when the search was
not based on reasonable suspicion and/or probable
cause.
2. The verdict in this case goes again[s]t the sufficiency of
the evidence when the evidence failed to establish that
____________________________________________
3
Judge William R. Cunningham authored the March 25, 2014 opinion. On
March 27, 2014, Judge Ernest J. DiSantis, Jr. authored a supplemental
opinion pursuant to Pa.R.A.P. 1925(a) addressing Appellant’s suppression
issue, because Judge DiSantis presided over Appellant’s omnibus pretrial
motions.
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[Appellant] acted knowingly and/or intentionally for each
of the criminal charges.
3. The sentence in this case was manifestly excessive and
clearly unreasonable, especially in its consecutiveness.
Appellant’s Brief at 2 (numbers added and superfluous capitalization
omitted).
In her first issue presented, Appellant argues that the suppression
court erred by failing to suppress the physical evidence obtained by police,
because “[t]he [o]fficers did not have a legal basis to search [Appellant], her
car seat or the hotel room.” Id. at 7. She argues that she had an
expectation of privacy in the baby car seat. Id. at 8. She claims that
“officers went to the hotel room to execute an arrest warrant of another
person without reasonable suspicion or probable cause that criminal activity
was afoot” and “had no reason to believe that [Appellant] was armed at the
time of the search[.]” Id. at 7. Appellant avers, “[b]oth individuals were in
custody at the time of the search and neither presented a danger to the
officers or a flight risk.” Id. at 8. In the alternative, Appellant maintains
that she “was not under arrest [at the time of the search] and it was not
until later that the officers were instructed to take [Appellant] to the Erie
County Prison” for violating the terms of her work release. Id. at 8-9.
Our standard of review of an order denying suppression motion is well-
settled:
We are limited to determining whether the lower court's
factual findings are supported by the record and whether
the legal conclusions drawn therefrom are correct. We may
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consider the evidence of the witnesses offered by the
Commonwealth, as [the prevailing party], and only so much
of the evidence presented by [the] defense that is not
contradicted when examined in the context of the record as
a whole. We are bound by facts supported by the record
and may reverse only if the legal conclusions reached by the
court were erroneous.
Commonwealth v. Landis, 89 A.3d 694, 702 (Pa. Super. 2014) (citation
omitted).
Here, the suppression court determined the search was constitutionally
permissible and, thus, suppression was unwarranted. Trial Court Opinion,
3/27/2014, at 3-7. More specifically, the suppression court concluded that
prior to executing the arrest warrant for co-defendant James, police had
information that Appellant was in the hotel room with him and that she was
in violation of the terms of her work release. Id. at 6-7. Thus, “her
violation of the work release pass justified the Task Force members to take
her into custody” and because the officers lawfully arrested her, the search
was permissible and conducted incident to the arrest. Id. at 7. Moreover,
the suppression court determined that Appellant voluntarily consented to the
search. Id. at 6. The suppression court further concluded the narcotics
would have been admissible under the inevitable discovery doctrine. Id. at
7.
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We agree, albeit on slightly different grounds.4 The police knew that
Appellant was in an unauthorized location in violation of the terms of her
work release when they executed the arrest warrant for James. N.T.,
9/30/2013, at 4-6, 8-9, 14-15, 17-22. “[A] participant in [a] work release
program, [] remain[s] in the official detention of the Commonwealth.”
Commonwealth v. Brown, 396 A.2d 377, 379 (Pa. Super. 1978). “The
county jail officials may detain and recommit [a work-release] offender or
preclude the offender from leaving the county jail if the offender violates the
conditions set by the jail officials or the court[.]” 42 Pa.C.S.A. § 9813(c).
Our Supreme Court has ruled that a person under Commonwealth
supervision, such as a probationer or parolee (or, in this case, a person
supervised on work release), enjoys a reduced scope of privacy rights, but
must still be afforded the protections of the Constitutions of the United
States and Pennsylvania. See Commonwealth v. Williams, 692 A.2d
1031, 1035 (Pa. 1997). We have previously determined that before law
enforcement may search a supervisee’s person, the officer must articulate a
reasonable suspicion that the person violated the terms of her supervision or
was involved in further wrongdoing. Id. (“A search will be deemed
reasonable if the totality of the evidence demonstrates: (1) that the parole
____________________________________________
4
We can affirm the trial court on any valid basis. Commonwealth v.
Kemp, 961 A.2d 1247, 1254 n.3 (Pa. Super. 2008).
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officer had a reasonable suspicion that the parolee had committed a parole
violation, and (2) that the search was reasonably related to the parole
officer's duty.”); see also In re J.E., 907 A.2d 1114, 1121-1122 (Pa.
Super. 2006).
Here, prior to the search, the director of the work release program
advised police officers that Appellant was only authorized to submit job
applications and that she was not permitted to go to James’ hotel. N.T.,
9/30/2013, at 8, 14- 16. Because “her whereabouts were not known to the
Erie County Jail[,]” Appellant was in “violation of her work release and not
abiding by the rules that were set for her when she was released to go and
apply for positions.” Id. at 14-16. Accordingly, because police articulated a
reasonable suspicion that Appellant had violated the terms of her
supervision, the search and her arrest were constitutionally permissible.
We also conclude that the search of the infant’s car seat passes
constitutional muster. We point out initially that Appellant does not challenge
the trial court’s determination that she impliedly, voluntarily consented to
the search. “[A]ctual consent, implied consent, search incident to lawful
arrest, and exigent circumstances may negate the necessity of obtaining a
warrant before conducting a search.” Commonwealth v. Riedel, 651 A.2d
135, 139 (Pa. 1994). “[T]he Commonwealth bears the burden of
establishing that a consent is the product of an essentially free and
unconstrained choice—not the result of duress or coercion, express or
implied, or a will overborne—under the totality of the circumstances.”
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Commonwealth v. Caban, 60 A.3d 120, 130 (Pa. Super. 2012). Here,
there was evidence that when asked if police could search her, Appellant
“voluntarily began to empty her pockets” and she “voluntarily bent over,
pulled the baby out and let [the officer] look at the car seat.” N.T.,
9/30/2013, at 9. While she did not verbally reply, Appellant’s actions show
implied consent. Upon review of the certified record, there is no additional
evidence that Appellant was under undue police coercion or duress at the
time of the search. For all of the foregoing reasons, Appellant’s first issue
lacks merit.
In her second issue presented, Appellant claims the Commonwealth
did not prove her convictions with sufficient evidence, because the
Commonwealth did not establish that Appellant acted knowingly or
intentionally. Appellant’s Brief at 9. The entire sum of Appellant’s argument
in this regard, is as follows:
In this case, the trial court maintains that while a digital
scale used for weighing drugs and baggies used for
packaging drugs was found in the hotel room, no
paraphernalia for ingesting the drugs was located. Further,
[Appellant] denied using the drugs. However, since another
person was present in the hotel room, the evidence in this
case does not prove that [Appellant] possessed illegal
substances with the intent to deliver them to anyone else.
Id. at 9.
Our standard of review for a challenge to the sufficiency of the
evidence is well-settled:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation
omitted).
Primarily, we note that Appellant sets forth a blanket sufficiency
challenge to all of her convictions. In Commonwealth v. Williams, 959
A.2d 1252 (Pa. Super. 2008), this Court reiterated that when challenging the
sufficiency of the evidence on appeal, Appellant's Pa.R.A.P. 1925(b)
statement must “specify the element or elements upon which the evidence
was insufficient” in order to preserve the issue for appeal. Williams, 959
A.2d at 1257. “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.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
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Super. 2009). Here, Appellant only specified that “the evidence presented
was insufficient to establish that [Appellant] acted knowingly and/or
intentionally for each of the criminal charges that she faced at trial.” Rule
1925(b) Statement 2/25/2014, at 3.
Further, on appeal, Appellant's sufficiency of the evidence argument is
underdeveloped. Appellant challenges all of her convictions based upon
scienter. However, she does not set forth the elements of the crimes she
was convicted. While Appellant does set out the standard of review for
sufficiency of the evidence claims, her argument is otherwise without citation
to any legal authority. For these reasons, we could find the claim waived.
However, the thrust of her argument is clear. Appellant is challenging
her two PWID convictions. Pursuant to 35 P.S. § § 780-113, the following
acts are prohibited:
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by
the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113(a)(30).
“[I]n order to prevail on a charge of possession of a controlled
substance with intent to deliver, the Commonwealth must prove, beyond a
reasonable doubt, that the accused possessed a controlled substance and
that the accused had the intent to deliver the controlled substance.
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Commonwealth v. Taylor, 33 A.3d 1283, 1288 (Pa. Super. 2011)
(emphasis in original).
Regarding possession, a person may have actual or constructive
possession of contraband. Constructive possession is defined as follows:
[c]onstructive possession is an inference arising from a set
of facts that possession of the contraband was more likely
than not. We have defined constructive possession as
“conscious dominion.” We subsequently defined “conscious
dominion” as the power to control the contraband and the
intent to exercise that control. To aid application, we have
held that constructive possession may be established by the
totality of the circumstances.
Commonwealth v. Muniz, 5 A.3d 345, 348-349 (Pa. Super. 2010) (citation
omitted). “Additionally, it is possible for two people to have joint
constructive possession of an item of contraband.” Commonwealth v.
Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013) (citation omitted). Here,
the Commonwealth presented evidence that Appellant was holding the
infant’s car seat from which the narcotics were recovered. Thus, the
element of possession is clearly satisfied.
Regarding intent to deliver, our Supreme Court has stated:
When the quantity of the controlled substance is not
dispositive as to the intent, the court may look to other
factors including the manner in which the controlled
substance was packaged, the behavior of the defendant, the
presence of drug paraphernalia, and large[] sums of cash
found in possession of the defendant.
Id., citing Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–1238 (Pa.
2007) (brackets and ellipsis omitted).
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Here, the trial court noted:
In this case, the cocaine and heroin were packaged into
three different plastic baggies. The large quantities of drugs
found were beyond that needed for personal use. A scale
for weighing drugs and plastic baggies for packaging drugs
were in plain view in the hotel room. The purpose of these
items was to weigh and package heroin for retail sales.
There was no evidence of any drug paraphernalia used for
taking drugs. Both Appellant and James were unemployed,
yet Appellant had approximately $2,600.00 in cash hidden
on her person.
Trial Court Opinion, 3/25/2014, at 8.
We agree with the trial court that the evidence points unmistakably to
PWID. Appellant was carrying a sizeable amount of narcotics in a baby
carrier and $2,600.00 in cash inside her bra. Those items were clearly in
her possession at the time of the search. Moreover, the narcotics were not
packaged for individual use and police did not find paraphernalia commonly
used for personal consumption. The scales and packaging material were
found inside the hotel room with Appellant and James; thus, Appellant had
joint constructive possession of those items. These items are used for
packaging controlled substances for delivery. Based upon a totality of the
circumstances, we conclude that there was sufficient evidence to support
Appellant’s convictions for PWID. As such, Appellant’s second issue is
without merit.
Finally, Appellant contends that her sentence is excessive. Appellant’s
Brief at 9-11. We find this issue waived, but otherwise not subject to our
review. In her Rule 1925(b) statement, Appellant claimed that the trial
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court abused its discretion by sentencing her on the endangering the welfare
of a child conviction consecutively to her PWID convictions. Rule 1925(b)
Statement 2/25/2014, at 3. On appeal, Appellant argues that the trial court
failed to individualize her sentence and take her age and the fact that she is
a mother into consideration. Appellant’s Brief at 10. Appellant did not
present that issue in her Rule 1925(b) statement and cannot raise a new
theory in support of her sentencing claim on appeal. See Pa.R.A.P.
1925(b)(4)(vii); Pa.R.A.P. 302(a). Thus, Appellant has not properly
presented that issue for our review.
Moreover, Appellant challenges the discretionary aspects of
sentencing:
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. An appellant must satisfy
a four-part test to invoke this Court's jurisdiction when
challenging the discretionary aspects of a sentence.
We conduct a four-part analysis 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, 1265-1266 (Pa. Super.
2014) (internal citations omitted).
Appellant fulfilled the first two elements by filing a timely notice of
appeal, and by preserving her claim in a motion for modification of sentence.
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Appellant also met the third element because her brief contains the
necessary concise statement of the reasons relied upon for appeal.
Therefore, we must determine if Appellant's challenge to the discretionary
aspect of her sentence raises a substantial question.
“Generally speaking, the court's exercise of discretion in imposing
consecutive as opposed to concurrent sentences is not viewed as raising a
substantial question that would allow the granting of allowance of appeal.”
Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super. 2010)
(citation omitted). “[T]he key to resolving the preliminary substantial
question inquiry is whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an excessive level
in light of the criminal conduct at issue in the case.” Id. at 587. Here, the
aggregate sentence of 7½ - 16 years of imprisonment is not facially
excessive for the criminal conduct involved which included two PWID
convictions, two possession of a controlled substance convictions, and
individual convictions for endangering the welfare of a child, possession of
drug paraphernalia, and conspiracy.
Appellant’s Rule 2119(f) statement alleges that her sentence was
contrary to fundamental norms underlying the sentencing process because it
was not “individual.” She also claims that her sentence violated 42
Pa.C.S.A. § 9781 since it was clearly unreasonable. We are not persuaded
that these bald allegations raised a substantial question within the
contemplation of our prior cases. “An allegation that the sentencing court
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failed to consider certain mitigating factors generally does not necessarily
raise a substantial question.” Commonwealth v. Moury, 992 A.2d 162,
171 (Pa. Super. 2010) (citations omitted). “When imposing a sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant.” Id. (citation omitted). “In particular, the
court should refer to the defendant's prior criminal record, [her] age,
personal characteristics and [her] potential for rehabilitation.” Id. “Where
the sentencing court had the benefit of a presentence investigation report
(PSI), we can assume the sentencing court was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Id. (internal
quotations and citation omitted). Here, the sentencing court had the benefit
of a PSI report. N.T., 1/10/2014, at 10. Hence, for all of the foregoing
reasons, Appellant has waived her sentencing challenge and she has failed
to present a substantial issue to invoke our discretionary review of her
sentence. Accordingly, Appellant’s third claim does not merit review.
Judgment of sentence affirmed.
Judge Donohue joins the memorandum.
Judge Platt concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2014
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