Com. v. Myers, K.

J-S49028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KARL K. MYERS,
Appellant No. 3243 EDA 2013
Appeal from the Judgment of Sentence November 7, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-36-CR-0004755-2011
BEFORE: OLSON, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 23, 2014
Karl K. Myers appeals from the judgment of sentence imposed on
November 7, 2013 in the Court of Common Pleas of Montgomery County,
following his convictions on 14 counts of drug related charges.1 He received
an aggregate sentence of 14 to 30 years’ incarceration. The charges arose
from Myers’ participation in a cocaine distribution ring operating out of a
barbershop. In this timely appeal, Myers claims the trial court erred in
failing to grant a mistrial after the Commonwealth presented evidence to the
jury it claimed it did not have, and in permitting a police officer to testify as
____________________________________________
1
The charges included: one count each of corrupt organization, 18 Pa.C.S. §
911(b)(3); dealing in proceeds of unlawful activities, 18 Pa.C.S. §
5111(a)(1); conspiracy, 18 Pa.C.S. § 903(a); three counts of criminal use of
a communication facility, 18 Pa.C.S. § 7512(a); and four counts each of
possession of cocaine, 35 P.S. § 780-113(a)(16) and possession of cocaine
with the intent to deliver 35 P.S. 780-113(a)(30).
J-S49028-14
an expert witness who also testified as a fact witness.2 After a thorough
review of the certified record, the submissions by the parties and relevant
law, we affirm on the sound basis of the trial court’s opinion dated January
9, 2014.
We write briefly to supplement the trial court’s reasoning regarding
Myers’ first issue. Prior to trial, the Commonwealth informed Myers’ counsel
the Commonwealth would be presenting certain surveillance videos of the
barbershop, but that Myers would not be in any of the portions shown. This
resulted in a stipulation agreeing to the admission of the video. Myers’
counsel highlighted the fact his client was never seen at the barbershop in
his opening statement. Nonetheless, the Commonwealth showed a brief
portion of a video showing Myers exiting his car outside the barbershop. The
trial court appropriately concluded the Commonwealth had violated the
terms of the agreement. However, the trial court denied the motion for
mistrial. Instead, the trial court gave a very strong limiting instruction to
the jurors highlighting the improper nature of the evidence and instructing
the jury that on no account could they consider the evidence. In its
Pa.R.A.P. 1925(a) opinion, the trial court denied Myers relief based upon the
____________________________________________
2
Our standard of review for the denial of a motion for mistrial is one of an
abuse of discretion. See Commonwealth v. Padilla, 923 A.2d 1189, 1192
(Pa. Super. 2007). Decisions regarding the admission of evidence are also
reviewed for abuse of discretion. See Commonwealth v. Feliciano, 67
A.3d 19, 27 (Pa. Super. 2013).
-2-
J-S49028-14
strength of the instruction and the lack of any indication that the jury
ignored the instruction.
While we agree with the trial court’s analysis, we also note that there
was sufficient evidence beyond the video surveillance to support the
convictions, and therefore, even if the trial court erred in refusing to grant a
mistrial the error was, at most, harmless error. Myers was identified
multiple times on wiretap recordings negotiating for the purchase of
substantial amounts of cocaine. He was also under surveillance as people
from the barbershop travelled to South Philadelphia to meet Myers to deliver
the cocaine he had ordered over the phone. Accordingly, whether Myers
was ever at the barbershop was of minimal importance.
Because our review has found no abuse of discretion on the part of the
trial court, we affirm the judgment of sentence.
Judgment of sentence affirmed. Parties are directed to attach a copy
of the January 9, 2014 trial court opinion in the event of further
proceedings.
Judge Stabile joins the memorandum.
Judge Olson concurs in the result.
-3-
J-S49028-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
-4-
Circulated 12/04/2014 02:44 PM
9IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DMSION
COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0004 755-2011
V.
KARL K. MYERS 3243 EDA 2013
OPINION
CARPENTER J.. JANUARY 9,2014
FACTUAL AND PROCEDURAL HISTORY
Appellant, Karl K. Myers, appeals from the judgment of sentence
imposed on November 7, 2013, following a five day jury trial at which he was
convicted of corrupt organizations, four counts of possession of cocaine, four
counts of possession with intent to deliver, dealing in proceeds of unlawful
activities, three counts of criminal use of communications facility and criminal
conspiracy.
From April of 2011, through May of 2011, the Montgomery County
Detective Bureau, along with the Tredyffrin Township Police Department,
conducted a wiretap investigation and utilized video surveillance, uncovering a
large and sophisticated cocaine distribution ring. The drug ring was centrally
operated out of A & L Head's Up Hair Studio at 932 Upper Gulph Road,
Tredyffrin Township, Montgomery County, Pennsylvania. Appellant was
. convicted for his major role in the drug distribution organization.
Circulated 12/04/2014 02:44 PM
On January 4, 2013, a hearing on pretrial motions filed by
Appellant and his two co-defendants, Patrick Wedderburn and Michael Dennis,
was conducted. Subsequently, on January 7, 2013, the three-defendant jury trial
commenced, at the conclusion of which Appellant was found guilty of the
aforementioned charges.
Sentencing was held on November 7, 2013, atwhich time an
aggregate sentence of 14 to 30 year's imprisonment. This timely appeal was
filed on November 22, 2013.
ISSUES
1. Whether the motion for a mistrial was properly denied.
II. Whether Detective Revnolds provided proper testimony.
DISCUSSION
I. The motion for a mistrial was properly denied.
First on appeal, Appellant contends that this Court erred in
denying his request for a mistrial after the jury was shown video surveillance of
him when the Commonwealth told defense counsel prior to trial that said
evidence did not exist and that Appellant was not in any of the video
. recordings.
During the testimony of Detective Michael Reynolds, the
Commonwealth was eliciting testimony about a search warrant which was
issued for a 2007 Acura, with license plate number HMB-4823 and registered to
Appellant. (Trial by Jury, V. 3 1/ 9/13 pp. 5 - 6). The detective stated that the
search warrant was never executed because the vehicle could not be located. Id.
2
Circulated 12/04/2014 02:44 PM
at 6. At that juncture, the Commonwealth showed a videotape of Appellant at
the barbershop exiting the Acura which was the subject of the search warrant.
Id. at 6 - 7. Defense counsel made an objection and requested a sidebar. Id. at
7.
Once out of the presence of the jury, defense counsel made a
motion for a mistrial, stating that any prejudice to his client could not be
overcome based on his opening statement to the jury and his cross-
examinations of the various witnesses. Id. at 8. Defense counsel explained that
he had received an email from the Assistant District Attorney on the Sunday
prior to trial which counsel represented that the email stated in part, ..... Also,
we will be using some fixed surveillance video of the barbershop. Karl is not in
any of them." Id. Defense counsel argued that despite the Assistant District
Attorney's representation to the contrary, the jury has now been shown that the
car that Appellant drove in, an Acura, and which was registered to Appellant,
was at the barbershop and that Appellant was seen by the jury in a video at the
barbershop. Id. at 9.
The Commonwealth agreed that the email was sent, but disagreed
with defense counsel's reading of that email. The Commonwealth asserted that
the email doesn't say Appellant was never seen at the barbershop; but rather, it
states that the Commonwealth will be using some fixed surveillance and that
Appellant is not in any of them. Id. The Commonwealth argued that the email
was not sent in bad faith, and explained that that the time the email was sent,
the Commonwealth was using videos where Appellant was not seen at the
3
Circulated 12/04/2014 02:44 PM
barbershop. However, subsequent to that email, the Commonwealth stated that
it found other fixed surveillance in which Appellant is depicted.at the
barbershop. Id. at 9 - 10. The Commonwealth also argued that because this
Court had, two days prior, stated that it would be allowed to use any and all
video or audio evidence and that defense counsel had the hard drives of all of
that evidence for over a year and a half prior to trial, defense counsel was on
notice that Appellant could be seen in video surveillance at the barbershop. Id.
This Court agreed that what the Commonwealth told defense
counsel in the email was that Appellant was not in any of the video surveillance
of the barbershop and that defense counsel had every right to rely on that -
assertion in telling the jury that Appellant is not going to be seen in a video. Id.
at 12 - 13. This Court never told the Commonwealth that it could use video
evidence that it told a lawyer it wasn't going to use. Id. at 14. At that point, this
Court denied the motion for a mistrial without prejudice. Id. at 14. This Court
stated that at a break it wanted defense counsel to discuss with Appellant
whether Appellant really does want a mistrial. Id. The objection was sustained,
the evidence was stricken from the record and the jury was given a cautionary
instruction. Id. at 14 - 15. The cautionary instruction was as follows:
. All right then, members of the jury, I'll remind you that
in the oath you took what you swore to do, among
other things, is follow my instructions on the law.
Everyone in this courtroom, every defendant, every
lawyer has the absolute right to rely on the fact that
you will follow my instructions to the letter.
4
Circulated 12/04/2014 02:44 PM
·,
There was an objection to the last piece of evidence.
That objection is sustained. That evidence is not
admissible. It's stricken from the record. You must
obliterate it from your mind. It can have no bearing on
this trial. Strike it from your notes. Never refer to it.
Never think about it. It was improper and
impermiSSible. It's not part of this case. You must
completely disregard it. You must follow the
instruction that it may have no bearing whatsoever in
you deliberations in any way in this case. All right?
Please proceed.
Id. at 15 - 16.
Defense counsel never pursued a mistrial. The record is silent as to
whether he ever discussed a mistrial with Appellant, and whether that was
something that he wanted.
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. Commonwealth v. Chamberlain, 612Pa. 107, 175-176, 30 A.3d381,
422 (2011); Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264, 1272
(2000). "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." Commonwealth v. Wright, 599 Pa. 270, 310,
961 A.2d 119, 142 (2008) (quoting Christianson v. Ely, 575 Pa. 647,838 A.2d
630, 634 (2003) (internal quotations omitted». A mistrial is an extreme remedy
and 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
5
Circulated 12/04/2014 02:44 PM
defendant of a fair trial by preventing the jury from weighing and rendering a
true verdict." Wright, 961 A,2d at 142; Simpson, 754 A,2d at 1272. A mistrial is
not necessary where cautionary instructions are adequate to overcome
prejudice. Commonwealth v. Spotz, 552 Pa. 499, 716 A,2d 580,593 (1998);
Comnionwealth v. Lawson, 519 Pa. 175, 546 A,2d 589, 594 (1988). Whether the
harm can be removed by curative instructions will be within the sound
discretion of the trial court. Commonwealth v. Maloney. 469 Pa. 342, 365 A,2d
1237 (1976).
In this case, this Court determined that the cautionary instruction
was appropriate to remove the harm that the inadmissible evidence caused. The
instruction was firm, direct, specific, comprehensive and plain. Appellant has
offered nothingto rebut the presumption the jury followed the trial court's
instructions. Simpson,at 1272 (jury is presumed to follow trial court's
instructions to disregard inadmissible evidence). Accordingly, this Court did
not abuse its discretion in refusing to grant a mistrial.
In addition, defense counsel abandoned his request for a mistrial.
This Court denied it without prejudice. Defense counsel was instructed to
confer with Appellant to determine Whether that was something he would want.
The record is silent as to whether counsel did discuss the issue with Appellant
and what Appellant's answer was.
6
Circulated 12/04/2014 02:44 PM
II. Detective Michael Reynolds provided proper testimony.
Appellant's second issue on appeal is whether this Court erred in
permitting the investigating police personnel who was a fact witness to testify
as an expert witness.
In this case, Detective Michael Reynolds was the affiant of the
wiretap investigation, and oversaw the handling of the entire investigation,
including listening to the conversations, reading all of the reports from
surveillance and he was present while the interceptions were conducted at the
plant, where the listening took place. (Pretrial Motions 1/4/13 p. 24). At trial,
Detective Reynolds testified as a fact witness to the extenJ that he outlined a
summary and scope of the investigation. As an expert witness he interpreted
the linguistic jargon that was captured on the wiretap, and interpreted what his
observations were from the video surveillance. This was proper.
The Superior Court in Commonwealth v. Carter, 589 A.2d 1133
(Pa.Super. 1991), has ruled that expert testimony from an officer who has.just
served as an eyewitness is prejudicial, reasoning that H[e]xpert opinion evidence
[after eyewitness testimony] ... encouraged the jurors to shift their focus from
determining the credibility of the Officers' eyewitness testimony, and allowed
them instead, to defer to the Officers' expertise as narcotics detectives. Id. at
1134. The Court warned that such testimony has been condemned as an
invitation for the trier of fact to abdicate its responsibility to ascertain the facts
relying upon the questionable premise that the expert is in a better position to
make such a judgment. Id.
7
Circulated 12/04/2014 02:44 PM
Under the facts of this case, the concerns in Carter are not
implicated because Detective Reynolds was never an eyewitness to any of the
drug transactions for which he provided an opinion. The Commonwealth
presented numerous surveillance officers as fact witnesses who did testify as to
the facts surrounding the video surveillance that they conducted. Detective
Reynolds testimony did not run afoul of the concerns that the Superior Court
expressed in Carter; therefore, the detective's testimony was proper.
CONCLUSION
Based on the forgoing analysis, the judgment of sentence entered
on November 7, 2013, should be affirmed.
BY THE COURT:
cJ(mC~··
WILLIAM R. CARPEN R J.
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
38TH JUDICIAL DISTRICT
Copies sent 1/9/14 t01
first class mail,
Gina Capuano, Esquire
Interoffice mail to~
Robert Falin, Esquire .• ADA
c;?~--.--
8