Com. v. Velquez, V.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR VELQUEZ :
:
Appellant : No. 3508 EDA 2018
Appeal from the Judgment of Sentence Entered December 3, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000105-2018
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 03, 2019
Appellant, Victor Velquez, appeals from the judgment of sentence
entered on December 3, 2018, following his jury trial conviction of persons
not to possess a firearm.1 On appeal, Appellant’s counsel filed a petition to
withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S.
738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Upon review, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
We briefly summarize the facts and procedural history of this case as
follows. On October 12, 2017, Philadelphia Police Officer Sharrod Davis
observed Appellant snort the contents of a blue, glassine package from his
hand. Believing the substance to be narcotics, Officer Sharrod exited his
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1 18 Pa.C.S.A. § 6105.
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police vehicle, walked behind Appellant, and identified himself to Appellant as
a police officer. Appellant turned to face Officer Davis and began removing a
black jacket from his person. Officer Davis grabbed Appellant, before
Appellant could remove the jacket, and tackled him to the ground. As
Appellant was falling to the ground, Officer Davis heard a “metal thud sound.”
When he felt the outside of Appellant’s jacket, Officer Davis felt what he
believed was a firearm. Officer Davis recovered a firearm from the jacket
pocket, Appellant could not produce a license for the firearm, and Officer Davis
arrested him. N.T., 9/17/2018, at 5-18. The firearm was operable and loaded
with seven rounds of ammunition. N.T., 9/19/2018, at 12-17. From the
scene, Officer Davis recovered the blue glassine package he observed in
Appellant’s possession. Id.
Prior to trial, Appellant filed a motion to suppress the physical evidence
recovered by police. The trial court held a hearing on September 17, 2018
and, at its conclusion, denied Appellant relief. The case proceeded to a jury
trial on September 19, 2018. The Commonwealth called Officer Davis to
testify. He testified similarly to his previous testimony at the suppression
hearing. Appellant called a private investigator and Officer Amir Watson,
Officer Davis’ partner, to testify. The parties also stipulated that the recovered
blue, glassine packet tested positive for heroin and that Appellant had a prior
conviction rendering him ineligible to possess a firearm. Id. at 53-54. On
September 20, 2018, the jury convicted Appellant of the aforementioned
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offense. On December 3, 2018, the trial court sentenced Appellant to 10 to
20 years of imprisonment. This timely appeal resulted.2
Before reaching the merits of the appeal, we must first address the
propriety of counsel's petition to withdraw and Anders brief. We have
previously determined:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate's brief on the
appellant's behalf). By contrast, if counsel's petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous issues,
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2 Appellant filed a counseled notice of appeal on December 7, 2018. On
December 17, 2018, trial counsel petitioned the trial court to withdraw from
representation. On December 20, 2018, the trial court permitted trial counsel
to withdraw and appointed new counsel to represent Appellant on appeal. On
December 27, 2018, the trial court directed Appellant’s current appellate
counsel to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925. On April 10, 2019, after requesting and receiving
extensions to do so, Appellant’s appellate counsel filed a timely Rule
1925(c)(4) statement, indicating that he was filing an appellate brief pursuant
to Anders. On April 16, 2019, the trial court notified this Court that it was
transmitting the case without an opinion.
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we will deny the petition and remand for the filing of an advocate's
brief.
Our Supreme Court has clarified portions of the Anders
procedure:
In the Anders brief that accompanies court-appointed
counsel's petition to withdraw, counsel must: (1)
provide a summary of the procedural history and
facts, with citations to the record; (2) refer to
anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel's conclusion
that the appeal is frivolous; and (4) state counsel's
reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (some
citations omitted).
Upon review, counsel has complied with all of the foregoing
requirements pursuant to Anders and Santiago. Appellant has not
responded. Thus, we proceed to review the issues set forth in counsel’s
Anders brief before conducting an independent review of the record to discern
if there are non-frivolous issues overlooked by counsel. Id.On appeal, counsel for Appellant presents the following issues:
A. The trial court committed an abuse of discretion by denying
Appellant’s motion to suppress physical evidence because the
police lacked probable cause to conduct either a custodial or
investigative detention.
B. The trial court committed an abuse of discretion by denying
Appellant’s motion for a mistrial predicated on a reference to
prior warrants issued for Appellant.
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Anders Brief at 11 and 19 (complete capitalization omitted).
In the first issue presented in the Anders brief, Appellant contends that
the police lacked reasonable suspicion to conduct an investigative or custodial
detention and, therefore, the trial court abused its discretion by denying
suppression of the physical evidence recovered thereafter by the police.
Anders Brief at 11-19.
It is well-settled that:
[o]ur standard of review in addressing a challenge to a trial court's
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
We may consider only the evidence of the prosecution 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
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Moreover, it is within the [trial] court's province to pass on the
credibility of witnesses and determine the weight to be given to
their testimony.
* * *
The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures. To secure the right of
citizens to be free from such unreasonable intrusions, courts in
Pennsylvania require law enforcement officers to demonstrate
ascending levels of suspicion to justify their interactions with
citizens as those interactions become more intrusive. We have
long recognized that there are three levels of intrusion involved in
interactions between members of the public and the police. The
first is a mere encounter, which requires no level of suspicion at
all.
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The second level is an investigative detention, which must be
supported by reasonable suspicion. Finally, the third level is an
arrest or custodial detention, which must be supported by
probable cause.
* * *
The determination of whether an officer had reasonable suspicion
that criminality was afoot so as to justify an investigatory
detention is an objective one, which must be considered in light
of the totality of the circumstances.[3] It is the duty of the
suppression court to independently evaluate whether, under the
particular facts of a case, an objectively reasonable police officer
would have reasonably suspected criminal activity was afoot.
Commonwealth v. Soto, 202 A.3d 80, 90 (Pa. Super. 2018) (internal
citations and quotations omitted).
Here, Officer Davis, a Philadelphia police officer with fifteen years of
experience and narcotics interdiction training, witnessed Appellant, who was
five feet away, “holding a blue glassine package commonly known to package
heroin.” N.T., 9/17/2018, at 7. Officer Davis saw Appellant “[e]mptying the
contents onto his hand and snorting the contents[.]” Id. at 9. Officer Davis
had personally witnessed others using heroin before. Id. As such, he
“believed that [Appellant] was in possession of the illegal substance of heroin.”
Id.
Based upon the foregoing, the trial court properly determined that
Officer Davis had reasonable suspicion to suspect that criminal activity was
afoot. Officer Davis, a seasoned narcotics officer, personally witnessed
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3 A police officer is entitled to draw from the facts in light of his experience.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa. Super. 2006) (internal
citations and quotation marks omitted).
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Appellant ingesting heroin within close proximity. Thus, the record supports
the trial court’s decision not to suppress evidence obtained as a result of a
proper investigative detention. As such, Appellant’s current challenge is
frivolous.
In the second issue presented in the Anders brief, Appellant asserts
that the trial court erred by failing to declare a mistrial after Officer Davis
testified that there were outstanding arrest warrants issued for Appellant’s
unrelated criminal conduct. Anders Brief at 19-23.
We adhere to the following standards:
In criminal trials, declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
trial. By nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a mistrial serves
not only the defendant's interest but, equally important, the
public's interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
misconduct or prejudicial error actually occurred, and if so, ...
assess the degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the court
abused its discretion. Judicial discretion requires action in
conformity with [the] law on facts and circumstances before the
trial court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner lacking
reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016) (internal
citations and quotations omitted).
Pennsylvania Rule of Criminal Procedure 605(B) provides:
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When an event prejudicial to the defendant occurs during trial only
the defendant may move for a mistrial; the motion shall be
made when the event is disclosed. Otherwise, the trial judge
may declare a mistrial only for reasons of manifest necessity.
Pa.R.Crim.P. 605(B) (emphasis added). The failure to make a timely motion
for a mistrial will result in waiver of the issue. See Commonwealth v.
Tucker, 143 A.3d 955, 961 (Pa. Super. 2016). “This Court has previously
held that the failure to object to testimony at the time it was given precluded
a subsequent motion for mistrial lodged only after the witness was excused
and the court took a recess.” Id., citing Wilkerson v. Allied Van Lines,
Inc., 521 A.2d 25, 30 (Pa. Super. 1987) (“Appellee failed to object to
Simpson's reference to insurance when it was uttered, but rather waited until
after Simpson had completed his testimony on direct, cross, redirect and
recross. This was too late.”); see also Commonwealth v. Boring, 684 A.2d
561, 568 (Pa. Super. 1996) (deeming motion for mistrial made subsequent to
sustained objection untimely when deferred until conclusion of witness
testimony a considerable length of time after prejudicial remark occurred);
Commonwealth v. Smith, 410 A.2d 787, 790–791 (Pa. 1980) (request for
mistrial because of witness's reference to polygraph test untimely when made
approximately two or three minutes after the allegedly prejudicial statement).
In this case, Officer Davis testified that Appellant initially told Officer
Davis that his name was “Jose Pirela.” N.T., 10/19/2018, at 13. However,
Officer Davis was unable to find that name in the police computer databank.
Id. Officer Davis “finally [] was able to ascertain his name” and when he
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cross-checked Appellant’s name in the police computer system, information
“came back that the male had some warrants.” Id. Appellant objected to the
testimony and the trial court sustained Appellant’s objection. Id. However,
it was not until the conclusion of the Commonwealth’s case-in-chief that
defense counsel requested a mistrial based upon Officer Davis’ testimony
regarding prior warrant history. Id. at 56-57. We find Appellant’s request
was untimely and, accordingly, it was waived.
Regardless, the “extreme remedy” of a mistrial is only appropriate when
an incident “is of such a nature that its unavoidable effect is to deprive the
appellant of a fair and impartial trial.” Commonwealth v. Powell, 956 A.2d
406, 421 (Pa. 2008) (citation omitted). Our Supreme Court has determined:
The harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect
trial.
* * *
Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Hairston, 84 A.3d 657, 671–672 (Pa. 2014). In
reviewing the trial court's denial of a mistrial, we consider the nature of the
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reference and whether or not the Commonwealth intentionally elicited the
testimony. Powell, 956 A.2d at 421 (citation omitted).
In this case, the reference to outstanding arrest warrants for Appellant
was unsolicited, Appellant immediately objected, and the trial court promptly
sustained the objection. Moreover, we find the fleeting reference was
harmless. The evidence of Appellant’s guilt was so overwhelming that the
error could not have contributed to the verdict. Additionally, we note that the
parties stipulated that Appellant “ha[d] been convicted of a felony in the past
that prohibits him from possession of a firearm.” N.T., 9/19/2019, at 54. The
trial court, thereafter, gave an instruction that the jury “must not regard this
evidence as showing that [Appellant] is a person of bad character or criminal
tendencies from which you may infer guilt.” Id. at 55. As such, the
erroneously admitted evidence of outstanding arrest warrants pending against
Appellant was merely cumulative of other untainted evidence that he had
previously been convicted of a felony. Hence, while Appellant waived his
request for a mistrial, his request was otherwise without merit. Accordingly,
Appellant is not entitled to relief on his second issue presented.
Finally, we have conducted an independent review of the entire record
as required by Anders and have not discerned any other non-frivolous issues.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/19
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