Com. v. Piner, K.

J-S67007-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH J. PINER, :
:
Appellant : No. 4 WDA 2014
Appeal from the Judgment of Sentence June 14, 2013,
Court of Common Pleas, Blair County,
Criminal Division at No(s): CP-07-CR-0000675-2012,
CP-07-CR-0002676-2011, CP-07-CR-0002679-2011,
CP-07-CR-0002680-2011, CP-07-CR-0002681-2011,
CP-07-CR-0002687-2011 and CP-07-CR-0002695-2011
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 09, 2015
Appellant, Kenneth J. Piner (“Piner”), appeals from the judgment of
sentence entered on June 14, 2013, following his convictions for multiple
counts of, inter alia, possession of a controlled substance, 35 P.S. § 780-
113(a)(16), possession of a controlled substance with the intent to deliver
(“PWID”), 35 P.S. § 780-113(a)(30), conspiracy to deliver a controlled
substance, 18 Pa.C.S.A. § 903, criminal use of a communications facility, 18
Pa.C.S.A. § 7512(a), racketeering and corrupt organizations, 18 Pa.C.S.A. §
911(b)(3), conspiracy to violate racketeering and corrupt organizations laws,
18 Pa.C.S.A. § 911(b)(4), and dealing in proceeds of unlawful activities, 18
Pa.C.S.A. § 5111(a)(1).
*Former Justice specially assigned to the Superior Court.
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After a series of controlled buys of cocaine, on or about November 4,
2011, police arrested Piner and charged him (at six docket numbers 1) with
possession of cocaine, PWID, conspiracy to commit PWID, and criminal use
of a communications facility. In or around December 2011, a statewide
investigating grand jury began hearing testimony relating to the distribution
of cocaine in and around Altoona, Pennsylvania. As a result of the activities
of the grand jury, on February 28, 2012, additional drug-related charges,
including charges under Pennsylvania’s racketeering and corrupt
organizations law (18 Pa.C.S.A. § 911), were filed against Piner 2 and
thirteen other defendants. The trial court consolidated the charges against
Piner at all seven docket numbers for trial.
On September 5, 2012, Piner entered a guilty plea on various of the
charges against him at all seven docket numbers. On February 21, 2013,
however, Piner filed a motion to withdraw his guilty plea, and on March 7,
2013, approximately two weeks before the scheduled start of trial, the trial
court granted Piner’s motion to withdraw his guilty plea. A jury trial
commenced on March 25, 2013 against Piner and the other defendants
charged in connection with the grand jury’s activities. Piner testified on his
1
The charges at CR-2676-2011 related to activities on August 11, 2011; at
CR-2679-2011 for activities on September 7, 2011; at CR-2680-2011 for
activities on June 16, 2011; at CR-2681-2011 for activities on June 23,
2011; at CR-2687-2011 for activities on November 30, 2010; and at CR-
2695-2011 for activities on January 14, 2011.
2
These charges against Piner were filed at docket number CR-675-2012.
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own behalf, admitting that he sold cocaine out of the Corner Bar in Altoona,
but denying that he was part of any drug trafficking organization. At the
conclusion of the eleven-day trial, the jury convicted Piner of the above-
listed offenses. The trial court sentenced him to 36 to 72 years of
imprisonment.
On appeal,3 Piner raises seven issues for our consideration and
determination:
1. Did the prosecution, by telling the grand jury [Piner]
was “involved in homicides’, so contaminate the
proceedings so as to warrant dismissal of all the
charges issued and directed by the grand jury
presentment?
2. Did the trial court improperly deny [Piner] his
requested suppression hearing to contest the
unverified consensual phone wiretaps using
unreliable confidential informants in the six
controlled buy cases?
3. Was [Piner] unfairly denied a hearing on his
requested motion to suppress evidence obtained
from his residence improperly by police using search
warrants issued without probable cause?
4. Was the verdict regarding the grand jury corrupt
organization-conspiracy charges against the weight
of the evidence?
3
On March 25, 2014, the trial court filed a written opinion pursuant to Rule
1925(a) of the Pennsylvania Rules of Appellate Procedure. On October 9,
2014, this Court remanded the case back to the trial court for the
preparation of a supplemental Rule 1925(a) opinion with respect to issues 1,
2, 3, 4, and 7. In response, the trial court issued two supplemental Rule
1925(a) opinions, one by the Honorable Judge Timothy M. Sullivan dated
November 19, 2014, and the second by the Honorable Judge Daniel J.
Milliron dated December 3, 2014.
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5. Was the non-consensual phone tap permission
improperly granted by the Superior Court?
6. Was [Piner] a victim of sentence entrapment or
manipulation and therefore entitled to a reduced
sentence?
7. Were [Piner’s] due process rights violated by a faulty
(unfair) grand jury presentation and failure of the
Commonwealth and trial court to ensure that he had
his full requested suppression hearings?
Piner’s Brief at 27.
For his first issue on appeal, Piner contends that the trial court erred in
denying the motion to dismiss the criminal complaint and grand jury
presentment he filed four days before the start of trial. In this motion, Piner
requested that the trial court conduct an in camera review of the transcript
of the grand jury proceedings to determine whether the charges at docket
number at CR-675-2012 should be dismissed as a result of prosecutorial
misconduct. In particular, Piner’s motion brought to the trial court’s
attention statements by the prosecutor to a grand jury witness indicating
that Piner and his brother Stephen had been involved in a particular drug-
related homicide.4 Motion to Dismiss Complaint/Presentment, 3/21/2013,
¶¶ 1-7.
4
During the grand jury proceedings, the prosecutor asked a witness, “You
didn’t know they [the Piner brothers] were involved in the homicide of Lisa
Snider? At least that is the word on the street.” Piner’s Brief at 37.
[FOOTNOTE CONT’D]
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The trial court initially deferred a ruling but denied Piner’s motion at
the conclusion of trial by order dated April 10, 2013. This order is
problematic for multiple reasons. First, the trial court denied Piner’s motion
as untimely because it was not included in an omnibus pretrial statement
filed within thirty days of the arraignment, as required by Rule 579 of the
Pennsylvania Rules of Criminal Procedure. Trial Court Order, 4/10/2013, at
2. The trial court does not explain its basis for concluding that a motion of
the type at issue here (dismissal of criminal complaint or investigating grand
jury presentment for prosecutorial misconduct) must be included in an
In summarizing the criminal history section of the application for wiretaps
submitted to this Court (see infra issue five), the trial court offered the
following background on this criminal episode:
Even though the charges of Criminal Homicide and
Criminal Conspiracy to Commit Homicide were
eventually dismissed, both [Piner] and his brother,
Stephen Piner, were implicated in that homicide as
well as another homicide, the victims being Julius
Jackson and Lisa Snyder. Ms. Snyder was working
as a confidential informant for the Altoona Police
Department at the time of her demise. Agent Adams
testified that even though neither Piner has ever
been convicted of either [h]omicide, [] the
confidential informants being utilized during the
investigation believed that the Piner brothers were
involved in these two homicides and that there was,
in his words, “street cred” (i.e., credibility) that the
Piners were involved in these murders. This belief,
fear and/or concern was serving as a deterrent to
confidential informants fully cooperating with the
police.
Trial Court Opinion, 6/4/2012, at 5.
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omnibus pretrial motion (per Pa.R.Crim.P. 578). Moreover, even if
applicable, Pa.R.Crim.P. 579 provides that the omnibus pretrial motion must
be filed within thirty days of the arraignment “unless opportunity therefor
did not exist, or the defendant or defense attorney, or the attorney for the
Commonwealth, was not aware of the grounds for the motion ….”
Pa.R.Crim.P. 579. Piner contends that the transcript of the grand jury
proceedings did not become available to him until after the entry of his
guilty plea, and that upon the withdrawal of his plea he promptly filed his
motion to dismiss. Piner’s Brief at 39. Nothing in the certified record on
appeal disputes this contention.
Second, the trial court’s April 10 order indicates that the
Commonwealth “orally objected to the late filing” of the motion. The
certified record, however, contains no evidence of any such objection (or
other argument regarding the applicability of Rules 578 and 579). Third, the
trial court ruled that Piner had made “similar claims under previous
Petitions,” and that another judge (the Honorable Timothy M. Sullivan) had
denied these claims on substantive grounds in a written decision dated June
4, 2012. While it is true that Piner had previously objected to a reference to
a homicide in an affidavit of probable cause submitted to this Court in
connection with the issuance of wiretaps (see discussion of issue five infra),
at no time prior to his March 21, 2013 motion to dismiss had Piner raised
any issues with respect to prosecutorial misconduct during grand jury
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proceedings.5 Judge Sullivan’s June 4, 2012 opinion discusses prior
allegations of Piner’s involvement in homicides in the affidavit of probable
cause. Trial Court Opinion, 6/4/2012, at 5. It does not, however, reference
any statements by the prosecutor to this effect during the grand jury
proceedings or consider dismissal of any charges for prosecutorial
misconduct.
In its appellate brief, the Commonwealth alternatively cites to
Commonwealth v. Sanchez, 82 A.3d 943, 985 (Pa. Super. 2013), for the
proposition that a conviction after a fair and lawful trial can render moot “a
defect in a pretrial proceeding.” Commonwealth’s Brief at 18. The “pretrial
proceeding” at issue in Sanchez, however, was a preliminary hearing.
Sanchez, 82 A.3d at 985. The Commonwealth has not cited to any
authority regarding the nullification by trial verdict of allegations of
prosecutorial misconduct during grand jury proceedings. Piner, conversely,
has directed us to Commonwealth v. Smart, 84 A.2d 782 (Pa. 1951), in
which our Supreme Court indicated that “it might be possible to imagine a
situation which presented justification, and even necessity, to investigate the
acts and conduct of a prosecuting officer during the course of his attendance
upon the Grand Jury,” upon the presentation of “credible, detailed, sworn
5
Issues related to “word on the street” about homicides (or threats of
homicides) by Piner and his brother also arose during testimony at the April
19, 2012 pretrial hearing regarding Piner’s request for reduced bail. N.T.,
4/19/2012, at 21-22.
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and persuasive averments by witnesses of the irregularities complained of.”
Id. at 786. Based upon Smart, we decline here to extend the scope of
Sanchez to grand jury proceedings.
We need not determine whether any prosecutorial misconduct
occurred during the grand jury proceedings in this case, since even if we
were to find error in the trial court’s denial of Piner’s motion to dismiss, it
would be harmless.
Harmless error exists where: (1) the error did not
prejudice the defendant or the prejudice was de
minimis; (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. Melvin, 103 A.3d 1 (Pa. Super. 2014) (quoting
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002)).
At trial, Piner was not charged with murder and the jury received no
evidence relating to Piner’s participation in any murders (including but not
limited to the alleged homicide referenced in the grand jury proceedings). 6
6
Piner points out that counsel for the Commonwealth referenced the grand
jury proceedings during his opening statement to the jury at trial, stating
that the “Grand Jury eventually approved the number of charges that are
before you, after considering the testimony and the evidence presented by
the Commonwealth.” N.T., 3/25/2013, at 24. Counsel for the
Commonwealth did not, however, reference any murders or testimony about
murders. To the contrary, his next statement to the jury was,
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Moreover, the properly admitted and uncontradicted evidence of Piner’s guilt
was overwhelming. The Commonwealth presented the testimony of law
enforcement officers, confidential informants, and lay persons regarding the
controlled buys in 2010 and 2011, during which Piner sold cocaine to
numerous individuals. During his own testimony, Piner admitted that he
purchased, repackaged, and sold cocaine. N.T., 4/9/2013, at 4-61. During
the investigation of the Corner Bar, law enforcement officers testified
that they employed video surveillance, personal surveillance, pen
registers to record phone information, confidential informants, and
wiretaps. N.T., 3/27/2013, at 161-162. During the investigation, the
evidence disclosed that law enforcement officers listened to and
monitored a total of 19,217 phone calls and texts messages from the
phones of Piner and his brother Stephen, 2,377 of which directly or
indirectly referenced drug information or delivery. Id. at 137.
With respect to the racketeering and corrupt organizations convictions,
the evidence generally showed that Damion Floyd operated a drug trafficking
organization from the Corner Bar in Altoona. After his incarceration, Floyd
continued to operate the organization from prison, with primary assistance
from Jermaine Samuel and Octavius Cooley. Rodney Williams was the
source of the cocaine in Baltimore, Maryland, and Shonda Hicks, a bartender
“Consequently, you will consider charges that involve a number of controlled
purchases from Kenneth Piner.” Id. We also note that Piner’s trial counsel
did not object to these remarks.
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at the Corner Bar, went to Baltimore on multiple occasions to transport the
cocaine to Altoona. Samuel and Cooley then distributed the cocaine to,
among others, Piner and his brother Stephen. Regarding Piner’s association
and participation in the organization, during relevant parts of 2010 and
2011, Piner resided at the Corner Bar. Agent Albert Adams testified that
based upon the surveillance of phone calls and texts, Piner, while having a
smaller customer base than did his brother Stephen, clearly played a role in
the organization. N.T., 3/27.2013, at 146-47, 176. While Piner denied
that he ever purchased or received drugs from Samuel, Trooper Craig
Grassmyer testified that Piner informed him that he could purchase 18
ounces of cocaine from Samuel “at any time he wanted.” N.T.,
4/2/2013, at 109-110. During his own testimony, Piner admitted both
that he purchased cocaine from Octavious Cooley, a member of the
Corner Bar organization, and that he knew the drugs he was purchasing
came from Baltimore. N.T., 4/2/2013, at 22, 35-36.
Piner was convicted of a violation of section 911(b)(3) of
Pennsylvania’s Corrupt Organizations Act, which provides as follows:
(b) Prohibited activities.--
(3) It shall be unlawful for any person employed by
or associated with any enterprise to conduct or
participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of
racketeering activity.
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18 Pa.C.S.A. § 911(b)(4). As set forth herein, the properly admitted and
uncontradicted evidence of Piner’s association with, and participation in, the
Corner Bar enterprise was overwhelming. Accordingly, we conclude that any
errors relating to the trial court’s denial of Piner’s motion to dismiss based
upon instances of prosecutorial misconduct during the grand jury
proceedings were harmless. Piner is entitled to no relief on his first issue on
appeal.
For his second issue on appeal, Piner contends that the trial court
improperly denied him a suppression hearing to contest certain consensual
phone wiretaps, pursuant to which evidence was gathered in support of the
six controlled buy cases (CR-2676-2011, CR-2679-2011, CR-2680-2011, CR-
2681-2011, CR-2687-2011, and CR-2695-2011). The trial court and the
Commonwealth argue that Piner waived this issue. We agree with Piner that
the issue was properly raised and preserved for appeal, but deny relief
based upon harmless error.
To recap the relevant facts, on November 4, 2011, the police arrested
Piner and charged him with PWID and other drug-related crimes. On
November 10, 2011, the police served him with three notices, entitled
“Notice of Electronic Wiretapping or Surveillance” forms, informing him that
consensual wiretaps, authorized by 18 Pa.C.S.A. § 5704, had been used to
gather evidence in connection with the six controlled buy cases. In his
Omnibus Pretrial Motion filed at the above-referenced six docket numbers,
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Piner sought the suppression of all evidence obtained pursuant to these
consensual wiretaps.
MOTION TO PROVIDE THE BASIS AND AUTHORITY FOR
THE WIRETAPPING FOR ELECTRONIC SURVEILLANCE
28.
Your Petitioner was provided with Notice of
Wiretapping Electronic Surveillance on November 10,
2011 by Detective Sgt. Johannides and Officer Moser
of the Altoona Police Department.
29.
Your Petitioner respectfully requests all
documentation and authority to form the basis for
the electronic surveillance or wiretapping. Your
Petitioner believes and wherefore avers that the
activities of the Commonwealth were not in
accordance with the Wiretapping and Electronic
Surveillance Control Act set forth at 18 Pa.C.S. §
5704 nor were they conforming with the strict
limitations required by said Act.
WHEREFORE, your Petitioner respectfully
requests the suppression of all information seized as
a result of the wiretapping and/or electronic
surveillance.
Omnibus Pretrial Motion, 2/27/2012, at ¶¶ 28-29. Piner filed his Omnibus
Pretrial Statement on February 27, 2012.
The next day, February 28, 2012, the Commonwealth filed the grand
jury-related charges against Piner (subsequently docketed at CR-675-2012).
Supporting evidence for these new charges had been gathered pursuant to
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non-consensual wiretaps of telephone calls authorized by this Court
pursuant to 18 Pa.C.S.A. § 5710(a).
The trial court conducted an evidentiary hearing on Piner’s Omnibus
Pretrial Motion on April 19, 2012, at which time the Commonwealth
presented witnesses with respect to three issues: delays in scheduling the
preliminary hearing, a request for modification of bail, and authorization for
non-consensual wiretaps. N.T., 4/19/2012, at 3-4. In its June 4, 2012
opinion, the trial court described the contents of briefs7 received from
counsel for the parties after the April 19 hearing:
In his one page memorandum, counsel for [Piner]
stated the following:
“In realty [sic], the non-consensual
surveillance or interceptions were not
conducted during the time frame of the
investigation and matters before the
Court. No testimony was presented
regarding the consensual interceptions.
Accordingly, counsel for [Piner]
requested suppression of any and all
evidence seized as a result of the
consensual interceptions” (Emphasis
added).
In his one page responsive letter memorandum,
[counsel for the Commonwealth] points out that
defense counsel did not previously raise an issue
relative to the consensual interceptions done in this
case, specifically conversations between the CI and
[Piner]. As a result, the Commonwealth did not
present any testimony as to those matters during
our April 19, 2012 hearing.
7
These briefs do not appear in the certified record.
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Trial Court Opinion, 6/4/2012, at 2. For these reasons, the trial court
rejected Piner’s challenge to the consensual wiretaps:
Based upon our review of the Motion filed on behalf
of [Piner], we agree that [Piner] never raised an
issue as to the consensual interceptions involving the
CI’s [sic] and [Piner]. Therefore, the Commonwealth
was never put “on notice” that this would be an issue
before the court.
Id. (emphasis in original). In its supplemental Rule 1925(a) opinion, the
trial court determined that Piner had waived his right to a suppression
hearing on the consensual wiretaps. Trial Court Opinion, 12/3/14, at 8.
We cannot agree that Piner waived this issue. As set forth above,
Piner specifically raised the issue of consensual interceptions in paragraphs
28 and 29 of his Omnibus Pretrial Motion. Although these paragraphs do not
use the words “consensual interceptions,” they clearly refer to them, for at
least two reasons. First, paragraph 29 refers to 18 Pa.C.S. § 5704, the
applicable statutory provision for consensual wiretaps. See 18 Pa.C.S.
§ 5704(4) (“[A]ll parties to the communication [must] have given prior
consent to such interception.”). Second, these paragraphs were included in
Piner’s Omnibus Pretrial Motion filed on February 27, 2012, one day before
the grand jury related charges against Piner (involving the use of non-
consensual wiretaps) were even filed. As a result, when the Omnibus
Pretrial Motion was filed, the use of non-consensual wiretaps was not yet at
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issue in the case, and thus its paragraphs 28 and 29 must refer to, and raise
the issue of suppression obtained from, consensual interceptions.
The Commonwealth’s introduction of evidence at the April 19 hearing
regarding authorization for non-consensual wiretaps utilized in the grand
jury proceedings was not responsive to the issue of consensual wiretaps
raised in paragraphs 28 and 29 of the Omnibus Pretrial Motion. To the
extent that there was any confusion on this matter, counsel for Piner
clarified this point in his one page memorandum brief filed after the hearing.
The Commonwealth did not, however, request another evidentiary hearing
to rectify this apparent oversight, and the trial court did not conduct one.8
8
On appeal, the Commonwealth contends that Piner waived this issue
because at a subsequent evidentiary hearings on April 19, 2012 and June
21, 2012, counsel for Piner stipulated that only a limited number of issues
(not including consensual intercepts) remained pending. Our review of
these transcripts does not support these contentions. At the April 19, 2012
evidentiary hearing, neither counsel nor the trial court attempted to limit the
number of pending issues. Instead, counsel for the Commonwealth merely
stated that “The Commonwealth would be prepared to address the
preliminary hearing delay, the bail issues raised by Mr. Piner, the
authorization for the nonconsensual intercept as well as the need for the
extraordinary measure of a non-consensual intercept.” N.T., 4/19/2012, at
3-4.
With respect to the June 21, 2012 evidentiary hearing, the Commonwealth
asserts that “the trial court and Piner agreed that the only issues before the
court were Piner’s request to sever the charges and a petition for nominal
bail under Pa.R.Crim.P. 600.” Commonwealth’s Brief at 21. The transcript
reflects that counsel for Piner raised the suppression issues, advising the
trial court that “Judge Sullivan has rendered a decision based upon the
Motion to Suppress that we had filed earlier. So, I’m not going to renew
that at this time.” N.T., 6/21/2012, at 1.
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Although we conclude that the trial court erred in denying Piner’s
motion to suppress evidence obtained by consensual wiretaps without first
receiving evidence of prior consent, we find this to be harmless error. See
Commonwealth v. Arrington, 86 A.3d 831, 846-48 (Pa.), cert. denied sub
nom., Arrington v. Pennsylvania, 135 S. Ct. 479 (2014) (error in
connection with 18 Pa.C.S. § 5704 analysis is subject to harmless error
doctrine). In this case, the evidence obtained through the use of consensual
wiretaps was merely cumulative of other properly-introduced evidence with
substantially similar content. The jury heard testimony from multiple
witnesses that Piner sold cocaine in the Altoona area during the time periods
relevant to the six controlled buy cases. Among others, confidential
informants Michael Lattieri and Robert Cherry testified regarding their
controlled purchases from Piner for law enforcement. N.T., 3/25/2013, at
93-129; N.T., 3/26/2013, at 12-163. Sergeant Troy Johannides testified
regarding his supervision of Michael Lattieri, N.T., 3/26/2013, at 189-221;
N.T., 3/27/2013, at 18-47; N.T., 3/28/2013, at 34-47; N.T., 4/4/2013, at
14-22, and Corporal Christopher Moser testified regarding his supervision of
Robert Cherry. N.T., 3/25/2013, at 53-91; N.T., 4/5/2013, at 87-104.
Deanna Savino, Greg Conrad and Damien Pierce all testified that they
purchased cocaine from Piner. N.T., 3/27/2013, at 29-45; N.T., 3/28/2013,
at 75-102; N.T., 4/3/2013, at 60-72. Linda Hartman testified that Piner
provided cocaine to people who in turn sold it to her, N.T., 3/28/2013, at
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103-107, and Aubrey Moore testified that Piner provided her with cocaine
from January 2011 through November 2011 and that she saw Piner sell
cocaine to another person. N.T., 4/2/2013, at 3-22. Finally, Piner himself
testified that he routinely sold cocaine during the relevant time period,
including to Lattieri and Cherry. N.T., 4/8/2013, at 226-231.
For his third issue on appeal, Piner argues that he was denied a
hearing on his requested motion to suppress evidence improperly obtained
from his residence by police using search warrants issued without probable
cause. Piner raised this issue initially in his Omnibus Pretrial Motion. See
Omnibus Pretrial Motion, 2/27/2012, at ¶¶ 16-21. Similar to issue two
discussed hereinabove, the trial court and the Commonwealth contend that
Piner waived this issue by not raising it during pretrial proceedings or before
trial. Trial Court Opinion, 12/3/2014, at 8-9.
We need not wade through the parties respective waiver arguments
again, since even if the issue was adequately preserved for appeal, no relief
is due based upon harmless error. On appeal, Piner admits that the only
evidence allegedly improperly seized during the service of search warrants at
his residence on November 4, 2011 was “a small amount of cocaine” found
in one of his pockets. Piner’s Brief at 51. Given the substantial volume of
evidence introduced at trial regarding Piner’s possession and sale of cocaine
(including through his own testimony), the disclosure to the jury that he
possessed a small amount of cocaine in a pocket at the time of his arrest
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was not prejudicial to his defense, or at worst any such prejudice was de
minimis.
For his fourth issue on appeal, Piner challenges the weight of the
evidence in support of his convictions for violations of Pennsylvania’s
racketeering and corruption organizations law, 18 Pa.C.S.A. § 911. Our
standard of review for weight of the evidence claims is well-settled:
The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict,
and if a criminal defendant then files a motion for a
new trial on the basis that the verdict was against
the weight of the evidence, a trial court is not to
grant relief unless the verdict is so contrary to the
evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence
motion, and when an appellant then appeals that
ruling to this Court, our review is limited. It is
important to understand we do not reach the
underlying question of whether the verdict was, in
fact, against the weight of the evidence. We do not
decide how we would have ruled on the motion and
then simply replace our own judgment for that of the
trial court. Instead, this Court determines whether
the trial court abused its discretion in reaching
whatever decision it made on the motion, whether or
not that decision is the one we might have made in
the first instance.
Moreover, when evaluating a trial court’s ruling, we
keep in mind that an abuse of discretion is not
merely an error in judgment. Rather, it involves bias,
partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to
the law and is based on the facts of record.
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Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (quoting
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).
As discussed in detail hereinabove (see supra at pages 9–10), the
Commonwealth presented sufficient evidence to establish Piner’s association
with the drug trafficking organization operated from the Corner Bar in
Altoona. Agent Albert Adams testified regarding the surveillance of a
substantial volume of phone calls and texts from the phones of Piner and
his brother Stephen involving the sale of drugs. N.T., 3/27.2013, at 146-
47, 176. While Piner denied that he ever purchased or received drugs
from Samuel, a high ranking member of the organization, Trooper Craig
Grassmyer testified that Piner informed him that he could purchase 18
ounces of cocaine from Samuel “at any time he wanted.” N.T.,
4/2/2013, at 109-110. Piner himself admitted that he purchased
cocaine from Octavious Cooley, also a member of the Corner Bar
organization, and that he knew the drugs he was purchasing came from
Baltimore. N.T., 4/2/2013, at 22, 35-36.
Piner contends that the evidence did not demonstrate that he was
associated with the Corner Bar organization. Piner argues that it was
his brother Stephen who sold drugs as a member of the organization,
and that he was only “a small time $50 and $100 seller of drugs to local
addicts like himself.” Piner’s Brief at 58. At trial, however, the
Commonwealth introduced substantial evidence of Piner’s association
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with the Corner Bar operation, including his cooperation with his
brother’s activities. Agent Adams testified:
Q. As far as Stephen Piner’s role in the organization
as opposed to that of Kenneth Piner[,] what does
that suggest?
A. That Kenneth was a little [sic] selling less drugs
or at a little bit lower level than what Stephen
Piner was.
Q. Does that say he’s not involved?
A. No.
* * *
A. I stated that they had separate distribution
groups, that they didn’t always overlap but
independent they crossed over here and there.
Through this investigation, you had at times
Kenneth Piner helping or going to Stephen or
Stephen going to Kenneth. I recall one instance
where Stephen gave Kenneth some drugs to get
back on his feet, sell, and distribute it. So
although they had their distribution groups, they
still communicated and worked a little bit
together.
N.T., 3/27/2013, at 146, 176.
Based upon our review of the certified record, we conclude that
the Commonwealth introduced sufficient evidence to permit the jury to
return a verdict of guilty on the racketeering and corrupt organizations
counts, and the jury’s verdict is not so contrary to the evidence as to shock
one’s sense of justice. The trial court did not abuse its discretion in denying
Piner’s post-sentence motion on this issue.
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For his fifth issue on appeal, Piner contends that the trial court erred in
refusing to suppress evidence obtained by non-consensual phone wiretaps
granted by this Court. On September 14, 2011, then-President Judge (now
Justice) Correale Stevens of this Court entered an order authorizing certain
wire and electronic communications by the Pennsylvania Office of Attorney
General, the Bureau of Narcotics, Investigations and Drug Control, and the
Blair County Drug Task Force. The order included a finding that Piner
(among others) were violating (and would continue to violate)
Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, 35
P.S. § 780-101 et seq. President Judge Stevens entered the order after
receipt and consideration of an application filed by the Pennsylvania Attorney
General, which included, inter alia, affidavits signed by Agent Albert Adams
and Agent Andrew Sprout. In his June 4, 2012 opinion, Judge Sullivan
rejected a suppression motion by Piner, concluding that the Commonwealth
had complied with the Pennsylvania Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S.A. § 5701 et seq., and that there was sufficient
probable cause for President Judge Stevens to enter the September 14,
2011 order. Trial Court Opinion, 6/4/2012, at 6.
Our well-settled standard of review of the denial of a motion to
suppress evidence is as follows:
[An appellate court's] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
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suppression court's factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court's factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court's legal
conclusions are erroneous. Where ... the appeal of
the determination of the suppression court turns on
allegations of legal error, the suppression court's
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to [] plenary review.
Commonwealth v. Garibay, 2014 WL 6910879, at *2 (Pa. Super.
December 9, 2014) (quoting Commonwealth v. Jones, 988 A.2d 649, 654
(Pa. 2010)).
Authorizations for wiretaps under the Wiretapping and Electronic
Surveillance Control Act must be instituted by the filing of an application
containing one or more sworn statements by investigative or law
enforcement officers who have knowledge of relevant information
justifying the application. The sworn statements must include “a
particular statement of facts showing that other normal investigative
procedures with respect to the offense have been tried and have failed,
or reasonably appear to be unlikely to succeed if tried or are too
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dangerous to employ.” 18 Pa.C.S.A. § 5709(3)(vii). Before a judge9
may issue an order authorizing an interception, the judge is required to
determine on the basis of the facts submitted in the application that
there is probable cause pursuant to section 5710(a):
§ 5710. Grounds for entry of order
(a) Application.--Upon consideration of an application, the
judge may enter an ex parte order, as requested or as
modified, authorizing the interception of wire, electronic or
oral communications anywhere within the Commonwealth, if
the judge determines on the basis of the facts submitted by
the applicant that there is probable cause for belief that all
the following conditions exist:
(1) the person whose communications are to be
intercepted is committing, has or had committed
or is about to commit an offense as provided in
section 5708 (relating to order authorizing
interception of wire, electronic or oral
communications);
(2) particular communications concerning such
offense may be obtained through such
interception;
(3) normal investigative procedures with respect
to such offense have been tried and have failed or
reasonably appear to be unlikely to succeed if
tried or to be too dangerous to employ;
(4) the facility from which, or the place where,
the wire, electronic or oral communications are to
be intercepted, is, has been, or is about to be
used, in connection with the commission of such
9
Pursuant to 18 Pa.C.S.A. § 5702, the term “judge” under the Wiretapping
and Electronic Surveillance Control Act refers to a member of this Court. 18
Pa.C.S.A. § 5702
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offense, or is leased to, listed in the name of, or
commonly used by, such person;
(5) the investigative or law enforcement officers
or agency to be authorized to intercept the wire,
electronic or oral communications are qualified by
training and experience to execute the
interception sought, and are certified under
section 5724 (relating to training); and
(6) in the case of an application, other than a
renewal or extension, for an order to intercept a
communication of a person or on a facility which
was the subject of a previous order authorizing
interception, the application is based upon new
evidence or information different from and in
addition to the evidence or information offered to
support the prior order, regardless of whether
such evidence was derived from prior
interceptions or from other sources.
18 Pa.C.S.A. § 5710(a).
“The standard for determining whether probable cause existed for
an order authorizing interception of telephone communications is the
same as that used to determine probable cause for search warrants.”
Commonwealth v. Birdseye, 637 A.2d 1036, 1041 (Pa. Super. 1994),
affirmed, 670 A.2d 1124 (Pa. 1996)). The question of whether probable
cause exists for a wiretap
must be adjudged by the totality of the
circumstances. Pursuant to the “totality of the
circumstances” test set forth by the United States
Supreme Court ... the task of [the trial court] is
simply to make a practical, common-sense
decision whether, given all of the circumstances
set forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of persons
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supplying hearsay information, there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. Thus, the
totality of the circumstances test permits a
balanced assessment of the relative weights of all
the various indicia of reliability (and unreliability)
attending an informant's tip[.]
Commonwealth v. Burgos, 64 A.3d 641, 655-56 (Pa. Super 2013)
(quoting Commonwealth v. Torres, 764 A.2d 532, 537–38 (Pa.
2001)), appeal denied, 77 A.3d 635 (Pa. 2013).
On appeal, Piner contends that the Commonwealth failed to satisfy
the requirements of 18 Pa.C.S.A. § 5710(a)(3), since before obtaining
the wiretap authorization “the police had already collected enough
information to successfully conclude their investigation and arrest any
guilty parties.” Piner’s Brief at 60. Piner argues that normal
investigative techniques such as controlled buys, confidential
informants, and pen registers had already provided sufficient evidence,
and thus the requested grand jury investigation wiretap was
unnecessary. Id. at 60-61.
This Court has addressed the “normal investigative procedures
requirement” as follows:
[T]he standard imposed by the Pennsylvania
legislature is … designed to guarantee that
wiretapping will not be resorted to in situations
where traditional investigative techniques are
adequate to expose crime. The requirement also
suggests that a wiretap should not be employed
as the initial step in a police investigation.
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However, the Commonwealth is not required to
show that all other investigative methods have
been exhausted. In making this determination,
moreover, the issuing authority may consider and
rely upon the opinions of police experts. In
reviewing the adequacy of the application to
support the issuance of an order of authorization,
we will interpret the application in a common
sense manner, not overly technical, with due
deference to the findings of the issuing authority.
Commonwealth v. Rodgers, 897 A.2d 1253, 1259-60 (Pa. Super
2006) (quoting Commonwealth v. Doty, 498 A.2d 870, 880–81 (Pa.
Super. 1985)).
Judge Sullivan found that the affidavits submitted in support of the
application here set forth an adequate basis to support the need for the
requested wiretaps. Trial Court Opinion, 6/4/2012, at 4. The certified
record on appeal supports this determination. While the application and
affidavits submitted to President Judge Stevens and later reviewed by
Judge Sullivan are not included in the certified record,10 Agent Adams
testified regarding their contents at some length during the evidentiary
hearing on April 19, 2012. At that time, Agent Adams explained that
wiretaps for the telephones of Piner and his brother Stephen were
necessary to learn the identity of those who supplied them with cocaine,
10
To the extent that this omission hinders our appellate review, Piner must
bear responsibility. “It is the obligation of the appellant to make sure that
the record forwarded to an appellate court contains those documents
necessary to allow a complete and judicious assessment of the issues raised
on appeal.” Lundy v. Manchel, 865 A.2d 850, 855 (Pa. Super. 2004)
(quoting Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996)).
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those who purchased cocaine from them, how the cocaine and cocaine
base was packaged, where the proceeds and cocaine base were
secreted, and the identities of conspirators and their roles in the
organization. N.T., 4/19/2012, at 48-55. Agent Adams also explained
that other investigative techniques had been employed, including the
use of confidential informants, video surveillance, surveillance by
officers, and pen registers (which do not capture the contents of calls),
but were unlikely to uncover the necessary information. Id. Agent
Adams indicated that the Piner brothers had been investigated for
cocaine distribution in the past, and their knowledge of traditional
investigative techniques (and how to minimize their effectiveness)
further necessitated the need for the wiretaps. Id.
For these reasons, we conclude that the trial court did not err with
respect to Piner’s fifth issue on appeal. No relief is due.
For his sixth issue on appeal, Piner asserts that the
Commonwealth was guilty of “sentencing enhancement,” since while he
admitted to participating in routine sales of cocaine, he was instead
unfairly portrayed as an integral part of a major distribution
organization. Piner’s Brief at 62. This Court adopted the equitable
doctrine of sentencing enhancement in Commonwealth v. Petrol, 701
A.2d 363 (Pa. Super. 1977), pursuant to which a defendant may be
entitled to a departure from sentencing guidelines upon a showing that
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his or her due process rights were violated. Id. at 366. Here Piner
argues that while he admitted to being predisposed to minor drug sales,
the Commonwealth entrapped him into committing greater offenses to
subject him to greater punishment. Piner’s Brief at 62.
We need not consider the merits of Piner’s due process
contentions. A claim of sentencing entrapment implicates the
discretionary aspect of sentence. See, e.g., Commonwealth v.
Pardo, 35 A.3d 1222, 1231 (Pa. Super. 2011). Because Piner failed to
include the required Pa.R.A.P. 2119(f) statement in his appellate brief
and the Commonwealth has objected to its omission, Commonwealth’s
Brief at 37, this claim is waived. Pardo, 35 A.3d at 1231.
For his final issue on appeal, Piner argues that the above-
discussed alleged prosecutorial misconduct during the grand jury
proceedings, and the trial court’s errors in connection with his
suppression motions, both constituted violations of his constitutional
rights to due process. As set forth hereinabove, however, we have
concluded that Piner is not entitled to any relief on these issues.
Accordingly, for the same reasons we likewise conclude that no relief is
due on this issue.
Judgment of sentence affirmed.
Mundy, J. joins the Memorandum.
Fitzgerald, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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