Com. v. Bidwell, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BIDWELL
Appellant No. 50 EDA 2014
Appeal from the Judgment of Sentence of August 22, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0002816-2011
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED MARCH 06, 2015
James Bidwell (“Bidwell”) appeals the August 22, 2013 judgment of
sentence. For the reasons set forth herein, we conclude that the trial court
abused its discretion in allowing the Commonwealth to introduce evidence of
Bidwell’s prior bad acts pursuant to Rule 404(b) of the Pennsylvania Rules of
Evidence. Accordingly, we vacate Bidwell’s judgment of sentence, and we
remand for additional proceedings consistent with this memorandum.
The trial court set forth the pertinent factual and procedural history of
this case as follows:
On November 18, 2010, Corporal Lucas Bray of the Pocono
Mountain Regional Police Department (“PMRPD”) received
information from a confidential informant that [Bidwell] and
another individual by the name of Chase Argot (“Argot”) would
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*
Retired Senior Judge assigned to the Superior Court.
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be traveling in a red [tractor-trailer] towing another truck.[1]
The informant stated that the two had travelled to Philadelphia in
order to pick up quantities of [m]ethamphetamine[,] and that
they were now on their way back to the area. Corporal Bray
informed Corporal Matt Nero, also of [the] PMRPD, of the
information provided by the informant. At the time, Corporal
Nero was on patrol in an unmarked, black Dodge Charger,
working the 3 p.m. to 11 p.m. shift. While parked on Route 115
near Interstate 80 in Blakeslee, [Pennsylvania,] Corporal Nero
observed a vehicle that matched the description provided by
Corporal Bray. Corporal Nero spotted a red [tractor-trailer]
exiting from Interstate 80 onto Route 115 [northbound] . . . .
Corporal Nero saw that the truck had run the stop sign at the
end of the exit ramp. In addition to the stop sign violation,
Corporal Nero noticed that the tag on the trailer was obstructed;
a metal object appeared to be blocking the truck’s tag.
Corporal Nero activated his vehicle’s siren and lights[,] and
initiated a traffic stop on Route 115 near the Best Western Hotel.
Corporal Nero approached the vehicle from the passenger side;
Argot was driving the vehicle and [Bidwell] was sitting in the
passenger seat drinking water and using his [iPad.] Corporal
Nero asked Argot and [Bidwell] for identification, insurance, and
registration. When Corporal Nero returned to his patrol vehicle,
he ran a criminal history check on Argot and [Bidwell, which
indicated] that Argot and [Bidwell] each had a criminal history.
Specifically, [Bidwell’s] criminal background check revealed prior
drug charges.
Corporal Nero next asked Argot to step out of the vehicle. Argot
stated that there were no illegal substances on his person, nor
were there any illegal substances located in the truck. Argot
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1
Corporal Bray’s confidential informant “ha[d] been deemed credible
and reliable in the past through information provided[,] which lead [sic] to
several arrests, the issuance of warrants[,] and the seizure of . . . controlled
substances.” Affidavit of Probable Cause, 11/19/2010, at 4. In addition to
the confidential informant, police also received information from three
additional sources, each of whom stated that Bidwell and Argot were
involved in the illegal distribution of methamphetamine. These individuals
are referred to in the affidavit of probable cause as “concerned citizen,”
“concerned resident,” and “confidential source,” respectively. Id. at 3-4.
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consented to a personal search, as well as a search of the truck.
[Bidwell then informed Corporal Nero that the truck belonged to
him, and refused to consent to any searches.] After [Bidwell]
denied Corporal Nero’s request to search the truck, [Corporal
Nero] deployed [his canine,] Niko[,] to perform a search of the
vehicle’s perimeter based on his suspicion that illegal narcotics
were present [in the truck.]
Niko . . . alert[ed] to the presence of a controlled substance.
Upon Niko’s alert, a decision was made to have the vehicle
impounded[,] and the truck was towed to the police
headquarters approximately twelve miles away. While located at
police headquarters, the truck was under constant visual
inspection. On November 19, 2010, at 8:45 a.m., Magisterial
District Judge Anthony Fluegel signed a warrant authorizing a
search of [Bidwell’s] truck.
Trial Court Opinion (“T.C.O.”), 6/1/2012, at 1-3 (unnumbered).
Upon searching Bidwell’s tractor-trailer, police discovered a small
amount of methamphetamine (approximately .11 grams) inside of a
briefcase that belonged to Argot. They also found 3.3 grams of
methamphetamine (commonly referred to as an “eight ball”) underneath a
mattress, which was directly behind the area where Bidwell was sitting at
the time of the traffic stop.
On June 9, 2011, Corporal Bray filed a criminal complaint charging
Bidwell with possession of a controlled substance, possession of a controlled
substance with intent to deliver (“PWID”), possession of drug paraphernalia,
and conspiracy to commit PWID.2 On February 29, 2012, Bidwell filed an
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2
35 P.S. §§ 780-113(a)(16), 780-113(a)(30), and 780-113(a)(32); and
18 Pa.C.S. § 903 (35 P.S. § 780-113(a)(30)), respectively.
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omnibus pretrial motion to suppress the physical evidence obtained from the
search of his truck. Therein, Bidwell argued that: (1) the stop, detention,
and seizure of Bidwell’s tractor-trailer were unconstitutional; (2) Corporal
Nero conducted a canine search of the exterior of Bidwell’s tractor-trailer
without the requisite reasonable suspicion that the vehicle was carrying
controlled substances; and (3) the November 19, 2010 search warrant was
not supported by adequate probable cause. Bidwell’s Omnibus Pretrial
Motion, 2/29/2012, at 2-6. In his motion, Bidwell also sought disclosure of
the identity of the Commonwealth’s confidential informant. On June 1,
2012, the trial court denied Bidwell’s motion by opinion and order following a
hearing.
On December 20, 2012, Bidwell filed a motion in limine seeking to
preclude Corporal Nero from testifying that Bidwell refused to consent to a
search of his tractor-trailer. On January 28, 2013, the Commonwealth filed
written notice of its intent to introduce at trial evidence of prior bad acts
pursuant to Pa.R.E. 404(b).3 Specifically, the Commonwealth intended “to
call multiple witnesses to establish that [Bidwell] regularly delivered
methamphetamine to others.” Commonwealth’s Notice Pursuant to Pa.R.E.
404(b)(4), 1/28/2013, at 1 (unnumbered). According to the
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3
See Pa.R.E. 404(b)(3) (“In a criminal case the prosecutor must
provide reasonable notice in advance of trial . . . of the general nature of
any [Rule 404(b)] evidence the prosecutor intends to introduce at trial.”)
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Commonwealth, the evidence of Bidwell’s prior drug deliveries would
“establish [Bidwell’s] intent in the present case.” Id. In response, Bidwell
filed a second motion in limine arguing that the Commonwealth should be
precluded from introducing the proffered Rule 404(b) evidence.
On March 4, 2013, the Commonwealth filed an amended notice of its
intent to introduce evidence of Bidwell’s prior bad acts. In the amended
notice, the Commonwealth specifically named Chase Argot, Clark Kitchell,
and Andrew Dehaan as the witnesses who would testify that Bidwell
previously had distributed methamphetamine to his friends and to his
employees.4 Commonwealth’s Amended Notice Pursuant to Pa.R.E.
404(b)(4), 3/4/2013, at 1 (unnumbered). According to the Commonwealth,
this testimony would establish Bidwell’s “intent, modus operandi, common
scheme, guilty knowledge, and the res gestae of the case as a whole.” Id.
at 2.
On May 7, 2013, Bidwell proceeded to a jury trial. Immediately before
the trial commenced, the court granted Bidwell’s December 20, 2012 motion
in limine, thereby barring Corporal Nero from testifying that Bidwell had
refused to consent to a search of his tractor-trailer. The trial court denied
Bidwell’s January 28, 2013 motion in limine, thereby permitting the
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4
Bidwell is the owner of Christian Containers, a garbage hauling
company. Notes of Testimony (“N.T.”), 5/7/2013, at 28.
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Commonwealth to introduce evidence of Bidwell’s prior drug deliveries
pursuant to Pa.R.E. 404(b).
Despite the trial court’s evidentiary ruling, on the first day of Bidwell’s
trial, Corporal Nero testified that Bidwell “would not give [him] consent to
search the vehicle.”5 Notes of Testimony (“N.T.”), 5/7/2013, at 43-44.
Following Corporal Nero’s utterance, Bidwell immediately moved for a
mistrial, which the trial court denied. The trial court offered to give the jury
a cautionary instruction, but Bidwell declined the offer.
The Commonwealth then presented testimony from Kitchell, Dehaan,
and Argot, which demonstrated that, on prior occasions, Bidwell had shared
methamphetamine with his friends and his employees. Near the close of the
Commonwealth’s case, the trial court permitted Corporal Bray to testify over
Bidwell’s objection that, in his expert opinion, the methamphetamine found
in Bidwell’s vehicle was consistent with possession with intent to deliver.
On May 9, 2013, the jury found Bidwell guilty of all counts. On August
22, 2013, the trial court sentenced Bidwell to an aggregate term of twenty-
four to sixty months’ incarceration. Sentencing Order, 8/28/2013, at 1-3.
Bidwell then timely filed post-sentence motions, which the trial court denied
on December 17, 2013.
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5
Corporal Nero testified in response to a question posed by Bidwell’s
own counsel on cross-examination.
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On December 31, 2013, Bidwell timely filed a notice of appeal. On
January 8, 2014, the trial court directed Bidwell to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bidwell
timely complied. On February 12, 2014, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).
Bidwell presents five issues for our consideration:
1. Whether the trial court erred when it allowed the
Commonwealth to introduce [Bidwell’s] prior drug use and
deliveries as [Rule] 404(b) evidence during trial over defense
objections?
2. Whether the [trial] court erred when it denied [Bidwell’s
m]otion for [m]istrial after [Corporal] Nero testified
nonresponsively to a defense question stating [Bidwell]
refused consent to a search of the vehicle?
3. Whether the [trial] court erred when it refused to order the
disclosure of confidential informants and to suppress the
methamphetamine seized from the [tractor-trailer] by
warrant which relied upon an unlawful canine sniff and no
facts upon which the alleged informants could be found
reliable?
4. Whether the trial court erred when it refused to order
disclosure of the identity of the witness who alleged that
Argot was his drug dealer?
5. Whether the trial court erred in allowing [Corporal] Bray to
testify over objection that the eight ball of methamphetamine
found in the [tractor-trailer] was possessed with intent to
deliver?
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Brief for Bidwell at 6.6
In his first issue, Bidwell argues that the trial court erred in denying
his motion in limine “to preclude any evidence of prior drug deliveries.” Id.
at 12. Specifically, Bidwell sought to preclude the Commonwealth from
introducing evidence that he had, on prior occasions unrelated to his arrest
for the instant offenses, provided methamphetamine to his employees.
Because the certified record demonstrates that this testimony had no
relevance other than to demonstrate Bidwell’s propensity to distribute
methamphetamine, the trial court not only erred, but also abused its
discretion in denying Bidwell’s motion in limine.
“In evaluating the denial or grant of a motion in limine, our standard
of review is the same as that utilized to analyze an evidentiary challenge.”
Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014) (en banc).
The admission of evidence is committed to the sound discretion
of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Id. (quoting Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super.
2010)).
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6
In his Rule 1925(b) statement, Bidwell also claimed that the jury’s
verdict was against the weight of the evidence. Bidwell has abandoned that
issue on appeal.
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In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), our
Supreme Court summarized Rule 404(b)7 of the Pennsylvania Rules of
Evidence as follows:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Sherwood, 982 A.2d at 497.
Stated simply, Rule 404(b) operates to prevent the jury from drawing
an inference of a defendant’s guilt based upon his or her propensity to
commit criminal acts. In this regard, our Supreme Court has explained that:
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7
Pa.R.E. 404(b), entitled “Other crimes, wrongs, or acts,” provides in
relevant part as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
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The purpose of [Rule 404(b)] is to prevent the conviction of an
accused for one crime by the use of evidence that he has
committed other unrelated crimes, and to preclude the inference
that because he has committed other crimes he was more likely
to commit that crime for which he is being tried. The presumed
effect of such evidence is to predispose the minds of the jurors
to believe the accused guilty, and thus effectually to strip him of
the presumption of innocence.
Commonwealth v. Spruill, 391 A.2d 1048, 1049-50 (Pa. 1978) (citations
omitted).
There are, of course, narrow exceptions to this rule, which may apply
when the prior criminal acts are so closely related to the crime charged that
they demonstrate a defendant’s motive, intent, malice, identity, or a
common scheme, plan or design. Commonwealth v. Stanley, 398 A.2d
631, 633-34 (Pa. 1979). These exceptions, however, “cannot be stretched
in ways that effectively eradicate the rule.” Commonwealth v. Ross, 57
A.3d 85, 104 (Pa. Super. 2012) (en banc).
As a starting point, we review the relevant testimony elicited at
Bidwell’s trial. First, Clark Kitchell, one of Bidwell’s employees, testified as
follows:
Q: Did [Bidwell] tell you anything else when he said to stick
around [at his shop on November 18, 2010]?
A: Yeah. I know they were going to Philadelphia to pick
something up, methamphetamines, at the time.
Q: He told you that?
A: Yes.
Q: He delivered it to you in the past?
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A: He gave it to me in the past. He didn’t deliver to me [in]
the past.
Q: Well, he handed it to you?
A: Yes.
Q: But he would not make you pay for it?
A: No. He never made me pay for it. Mostly it was he gave
all the workers mostly methamphetamine to keep them
working at the shop.
Q: And when he gave it to you how would it be packaged?
A: It would be packaged—he would pack it up in a little like
dime[-]sized bags. Like in the ziplocked, [sic] little bags.
N.T., 5/7/2013, at 64-65.
The Commonwealth also offered testimony from another one of
Bidwell’s employees, Andrew Dehaan.
Q: Okay. Now, before [November 19, 2010,] had you
received methamphetamine from [Bidwell]?
A: I received it how?
Q: Did he give it to you?
A: He let me do some. He didn’t just give it to me. There is
a difference.
Q: Tell us how that happened?
A: Just like anyone else I partied with. You know, I did drugs
with him. I cut out a couple of lines and we did some
drugs.
Q: So he would cut out a couple of lines or you would?
A: He would.
Q: He would cut out a couple of lines. And you would do a
line and he would do a line. Is that how it worked?
A: Yeah.
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Id. at 100-01.
Finally, Chase Argot testified as follows:
Q: How often would [Bidwell] give you methamphetamine?
A: I guess you can say regular [sic]. I don’t really know.
Q: Maybe a couple times a week or a couple times a month?
A: A couple times a week.
Q: Did you know where he was getting his methamphetamine
from?
A: I do not.
Id. at 139-40.
The trial court held that the above testimony was admissible to
demonstrate Bidwell’s motive, intent, common scheme or plan, and modus
operandi. T.C.O., 6/1/2012, at 14. We disagree.
In order for Rule 404(b) evidence to be admissible to demonstrate
motive or intent there must be a firm basis for concluding that the crime
currently on trial “grew out of or was in any way caused by the prior set of
facts and circumstances.” Commonwealth v. Camperson, 612 A.2d 482,
484 (Pa. Super. 1992) (quoting Commonwealth v. Brown, 421 A.2d 734,
736 (Pa. Super. 1980)). This analysis is guided by factors such as the
proximity in time between the incidents; the similarity in the circumstances
surrounding the incidents; and whether evidence of the prior crime is
necessary to rebut the accused’s evidence or contention of accident,
mistake, or lack of required intent. Commonwealth v. Sparks, 492 A.2d
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720, 722 (Pa. Super. 1985); Commonwealth v. Barba, 460 A.2d 1103,
1109 (Pa. Super. 1983).
It would be illogical to conclude that Bidwell’s possession of
methamphetamine grew out of or was caused by the fact that Bidwell had
previously given methamphetamine to the three witnesses. The two
occurrences do not share the close factual nexus that is required by Rule
404(b). Camperson, 612 A.2d at 484. For example, Bidwell’s possession
of methamphetamine logically could not have been caused by the fact that,
on some earlier occasion, Bidwell “cut out a couple of lines” of
methamphetamine, and shared them with Dehaan. N.T., 5/7/2013, at 100-
01. Nor did the facts surrounding the instant offense grow out of that
behavior.
The trial court also held that the Commonwealth’s Rule 404(b)
evidence was admissible to prove a common scheme or plan and Bidwell’s
modus operandi. T.C.O., 6/1/2012, at 14. Under Pennsylvania law,
evidence of prior bad acts is admissible to prove “a common scheme, plan or
design where the crimes are so related that proof of one tends to prove the
others.” Commonwealth v. Elliott, 700 A.2d 1243, 1249 (Pa. 1997),
abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d 385
(Pa. 2003). The existence of a common scheme is relevant to establish any
element of a crime, “so long as it does not merely indicate the defendant’s
propensity to commit similar crimes.” Commonwealth v. Bronshtein, 691
A.2d 907, 915-16 (Pa. 1997).
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In Elliott, for example, the appellant was accused of sexually
assaulting and then killing a young woman whom he approached outside of a
particular club at 4:30 a.m. Our Supreme Court affirmed the trial court’s
decision to permit three other young women to testify that the appellant had
similarly preyed upon each of them as they were leaving the exact same
club in the early morning hours, and that he had physically and sexually
assaulted them. Elliott, 700 A.2d at 1250-51. Our Supreme Court
reasoned that the testimony was admissible to establish a common scheme,
plan or design in light of the “close similarity between [the] assaults.” Id.
Relatedly, in order to establish a defendant’s modus operandi, the
Commonwealth must demonstrate that the crimes in question are “so nearly
identical in method as to earmark them as the handiwork of the accused.”
Commonwealth v. Rush, 646 A.2d 557, 561 (Pa. 1994) (quoting
McCormick on Evidence, § 190 (2d ed. 1972)). “More is demanded [than]
the mere repeated commission of crimes of the same class, such as
repeated burglaries or thefts. The device used must be so unusual or
distinctive as to be like a signature.” Commonwealth v. Blady, 444 A.2d
670, 671-72 (Pa. Super. 1982)
Here, any similarity between Bidwell’s prior methamphetamine
deliveries (as testified to by Kitchell, Dehaan, and Argot) and this case falls
short of proof of a common scheme, plan or design. The Commonwealth
presented evidence of similarity only at the most basic level—to wit, that
both incidents involved methamphetamine. Cf. Elliott, 700 A.2d at 1249
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(holding that evidence of prior bad acts is admissible to prove “a common
scheme, plan or design where the crimes are so related that proof of one
tends to prove the others.”). Bidwell’s drug deliveries did not share a
distinctive modus operandi. There was, for example, no testimony that the
methamphetamine seized (or its packaging) was uniquely consistent with
Bidwell’s prior deliveries. The prior bad acts testimony demonstrated merely
that Bidwell previously had shared methamphetamine with his friends and
employees; it did not illustrate “a unique ‘signature’ modus operandi.”
Ross, 57 A.3d at 104.
Of course, the Commonwealth did not argue that Bidwell’s prior drug
deliveries actually caused him to possess methamphetamine subsequently,
or that the instant offenses developed from Bidwell’s sharing of
methamphetamine with his employees. Instead, the Commonwealth relied
upon the exact reasoning that Rule 404(b) forbids—the inference that,
because Bidwell distributed methamphetamine on a prior occasion, he must
have intended to distribute this methamphetamine. Indeed, the assistant
district attorney candidly acknowledged this fact.
I want to be clear that the reason that we want to bring in this
[evidence] is because I can’t think of any other way to get the
testimony from the witnesses that they knew that they were
going to get methamphetamine from [Bidwell] other than based
upon their prior deliveries. . . . If the court limits that and cuts
that off, the evidence will make no sense to the jury. They will
have no reason to believe that these witnesses had any
knowledge of what [Bidwell] was going to do[,] and it all goes
down to [Bidwell’s] possession and his intent to deliver.
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N.T., 5/7/2013, at 11. The assistant district attorney plainly encouraged the
jury to draw this inference in his closing argument: “And the reason why we
know that [Bidwell] had it to deliver is because that was what he did with his
methamphetamine. He cut it up into lines, [and] shared [it] with his friends
or so-called friends.” Id. at 38. The purpose of Rule 404(b) is to prevent
the jury from drawing such a propensity inference.
This does not end our inquiry. Before we may grant Bidwell relief, we
must find that the trial court’s error was not harmless. It is well-settled that
the Commonwealth bears the burden of establishing that the error was
harmless beyond a reasonable doubt. Commonwealth v. Story, 383 A.2d
155, 162 n.11 (Pa. 1978).
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. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (quoting
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)).
Our Supreme Court has noted that “[e]vidence of prior criminal
activity . . . is probably only equaled by a confession in its prejudicial impact
upon a jury.” Spruill, 391 A.2d at 1050. “The presumed effect of such
evidence is to predispose the minds of the jurors to believe the accused
guilty, and thus effectually to strip him of the presumption of innocence.”
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Commonwealth v. Trowery, 235 A.2d 171, 172 (Pa. Super. 1967). For
this reason, Rule 404(b)(1) explicitly prohibits introduction of evidence of
prior bad acts for the purpose of showing that the defendant has a
generalized propensity to commit a particular crime—here, the proclivity to
distribute methamphetamine.
Instantly, the Commonwealth’s Rule 404(b) evidence was nothing
more than an invitation to the jury to infer that Bidwell intended to distribute
methamphetamine because he had done so in the past. The prospect that
the jury would draw such an inference was underscored by the assistant
district attorney’s closing argument, which unmistakably called upon the jury
to infer Bidwell’s guilt based upon his prior bad acts. See N.T., 5/9/2013, at
38 (“[T]he reason why we know that [Bidwell] had [methamphetamine] to
deliver is because that was what he did with his methamphetamine. He cut
it up into lines, [and] shared [it] with his friends.”). Moreover, the evidence
of Bidwell’s prior methamphetamine deliveries was not cumulative; it was
the cornerstone of the Commonwealth’s case against Bidwell. 8 The
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8
Although Corporal Bray, an expert in the field of drug trafficking,
testified that the facts surrounding Bidwell’s possession of
methamphetamine were consistent with possession with intent to deliver,
Corporal Bray also testified that he based his opinion, at least in part, upon
the Commonwealth’s Rule 404(b) evidence. N.T., 5/7/2013, at 165-67.
Therefore, the evidence of Bidwell’s prior bad acts tainted Corporal Bray’s
expert testimony. See Hutchinson, 811 A.2d at 561 (“Harmless error
exists where . . . the erroneously admitted evidence was merely cumulative
of other untainted evidence which was substantially similar to the
erroneously admitted evidence.” (emphasis added)).
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Commonwealth needed the jury to draw that connection in order to prove
that Bidwell intended to distribute the narcotics at issue. The assistant
district attorney plainly conceded this fact to the trial court. N.T., 5/7/2013,
at 11.
Based upon the particularly prejudicial nature of prior bad acts
testimony and the lack of any other compelling evidence of Bidwell’s intent
to deliver methamphetamine, the trial court’s admission of Rule 404(b)
evidence was not harmless beyond a reasonable doubt. Accordingly, the
trial court not only erred, but also abused its discretion by permitting such
evidence. Consequently, Bidwell is entitled to a new trial.
Having determined that Bidwell is entitled to a new trial, we now
address his remaining issues inasmuch as they may arise upon remand. In
his second issue, Bidwell contends that the trial court erred in denying his
motion for a mistrial. Brief for Bidwell at 27-29.
The trial court granted Bidwell’s motion in limine, which precluded at
trial any evidence regarding Bidwell’s refusal to consent to the search of his
truck. Nevertheless, during defense counsel’s cross-examination, Corporal
Nero testified that Bidwell “would not give [him] consent to search the
vehicle.” N.T., 5/7/2013, at 43-44. The remedy for such a violation would
be a new trial, the same remedy we granted to Bidwell on his first issue.
Our resolution of Bidwell’s first issue, therefore, has rendered this claim
moot. See In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“As a general
rule, an actual case or controversy must exist at all stages of the judicial
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process, or a case will be dismissed as moot.”). Nothing about our
resolution of this issue should be taken as an expansion or constriction of
the trial court’s evidentiary ruling, which remains viable and applies with
equal force upon remand. Accordingly, these unique circumstances are
unlikely to recur at Bidwell’s retrial.
In his third issue, Bidwell argues that the trial court erred in denying
his pretrial motion to suppress the physical evidence obtained from the
search of his truck. Specifically, Bidwell contends that: (1) because Corporal
Nero lacked reasonable suspicion that Bidwell and Argot were involved in
drug trafficking, the canine search of Bidwell’s truck violated Article I, § 8 of
the Pennsylvania Constitution; (2) the search warrant failed to articulate the
confidential informant’s reliability and basis of knowledge; and (3) the trial
court erred in failing to order disclosure of the identity of the
Commonwealth’s confidential informant. Brief for Bidwell at 15-22. We
disagree.
Our standard of review of a denial of suppression is whether the
record supports the trial court’s factual findings and whether the
legal conclusions drawn therefrom are free from error. Our
scope of review is limited; 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.
Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)
(internal citations and quotation marks omitted).
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In Bidwell’s first sub-issue, he claims that there was “no reasonable
suspicion to use [the] drug dog.” Brief for Bidwell at 15. We disagree.
Pursuant to Article I, § 8 of the Pennsylvania Constitution, a canine
sniff constitutes a search.9 Commonwealth v. Johnston, 530 A.2d 74, 79
(Pa. 1987). However, this type of search “is inherently less intrusive upon
an individual’s privacy than other searches such as wiretapping or
rummaging through one's luggage.” Id. Because canine searches
“amount[] to a relatively minor intrusion upon privacy,” they need not be
supported by probable cause. Instead, the police must possess only
reasonable suspicion that narcotics will be found in the area subject to the
canine search. Id.
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to “specific and
articulable facts” leading him to suspect criminal activity is afoot.
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citing Terry v.
Ohio, 392 U.S. 1, 88 (1968)).
____________________________________________
9
Cf. United States v. Place, 462 U.S. 696 (1983) (holding that a sniff
by a trained narcotics detection dog is not a search within the meaning of
the Fourth Amendment to the United States Constitution).
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Here, Bidwell does not dispute that Corporal Nero stopped Bidwell’s
tractor-trailer after observing two violations of the Motor Vehicle Code.10
Bidwell argues that, once Corporal Nero issued a warning to Argot for those
offenses, he no longer had reasonable suspicion that criminal activity was
afoot. Bidwell therefore concludes that the canine search (which Corporal
Nero conducted after the traffic stop had concluded) was unsupported by the
required reasonable suspicion.
Our review of the suppression record demonstrates that Corporal Bray
informed Corporal Nero that a known confidential informant had reported
that Bidwell and Argot would be returning from Philadelphia on the night in
question. N.T., 4/2/2012, at 13, exh. 1. The confidential informant further
stated that the pair would be transporting methamphetamine in a red
tractor-trailer. Id. The confidential informant had provided accurate and
reliable information in the past. Id. Moreover, the confidential informant’s
tip was buttressed by the uncorroborated reports from three anonymous
sources, which the police referred to as “concerned citizen,” “concerned
resident,” and “confidential source” in the affidavit of probable cause. Id.
Each of these sources identified Bidwell and Argot as methamphetamine
dealers, and at least one of the anonymous sources echoed the confidential
____________________________________________
10
See 75 Pa.C.S. § 3323(b) (duties at stop signs); 75 Pa.C.S. § 1332
(display of registration plate).
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informant’s prediction that Bidwell and Argot would be traveling to
Philadelphia to pick up bulk quantities of methamphetamine. Id.
Corporal Nero observed a tractor-trailer that matched the confidential
informant’s description. Corporal Nero then identified the two occupants as
Bidwell and Argot, and determined that Bidwell’s extensive criminal history
included violations relating to the illegal manufacture and distribution of
controlled substances. N.T., 4/2/2012, at 48. The trial court concluded that
these facts, combined with the tip provided by a known confidential
informant who had proven reliable in the past, were sufficient to give rise to
reasonable suspicion.
Our Supreme Court has held that an informant’s tip may produce
probable cause—a requirement more stringent than the reasonable suspicion
needed for a canine search—where police independently corroborate the tip,
or where the informant has previously provided accurate information of
criminal activity. Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999).
Here, the police possessed such a tip from a known informant who had
proved to be reliable in the past. That information was, to some degree,
corroborated by anonymous tips from various “concerned citizens.” Finally,
Corporal Nero observed Argot and Bidwell traveling in a vehicle consistent
with the informant’s tip, at the time and in the direction that the informant
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predicted. Accordingly, the trial court did not err in holding that Corporal
Nero reasonably suspected that narcotics would be found in Bidwell’s truck. 11
Next, Bidwell maintains that the affidavit in support of the search
warrant did not “articulate reasons supporting the reliability of the alleged
informants.”12 Brief for Bidwell at 20. This argument is without merit.
When reviewing whether a search warrant was sufficiently supported
by probable cause, we employ the “totality of the circumstances” analysis of
Illinois v. Gates, 462 U.S. 213 (1983). See Commonwealth v. Gray,
503 A.2d 921 (Pa. 1985) (adopting the “totality of circumstances” test in
Pennsylvania).
The task of the issuing magistrate is simply to make a practical,
common sense decision whether, given all the circumstances set
forth in the affidavit before him, including the “veracity” and
“basis of knowledge” of persons supplying hearsay information,
that there is a fair probability that contraband or evidence of a
____________________________________________
11
In its December 17, 2013 opinion, the trial court noted that Bidwell
appeared to be nervous throughout the traffic stop, and that Argot’s eyes
were bloodshot “as though he were intoxicated.” T.C.O., 12/17/2013, at 18
n.9. The Commonwealth did not present this evidence at Bidwell’s
suppression hearing. Therefore, we reject the trial court’s analysis insofar
as it relied upon these factors in concluding that the canine search was
supported by reasonable suspicion. See In re L.J., 79 A.3d 1073 (Pa.
2013) (holding that an appellate court’s scope of review in suppression
matters includes only the suppression hearing record, and excludes any
evidence elicited at trial).
12
Because we conclude that the canine sniff was supported by
reasonable suspicion, we need not address Bidwell’s contention that the
search warrant was “tainted by the unlawful sniff.” Brief for Bidwell at 20.
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crime will be found in a particular place. Gray, 503 A.2d at 925
(quoting Gates, 462 U.S. at 238-39).
Commonwealth v. Ceriani, 600 A.2d 1282, 1283-84 (Pa. Super. 1991).
In reviewing the validity of a search warrant, the “reviewing court is
limited to determining whether there is substantial evidence supporting the
issuing authority’s decision to approve the warrant.” Commonwealth v.
Cramutola, 676 A.2d 1214, 1216 (Pa. Super. 1996). “We must limit our
inquiry to the information within the four corners of the affidavit submitted
in support of probable cause when determining whether the warrant was
issued upon probable cause.” Commonwealth v. Rogers, 615 A.2d 55, 62
(Pa. Super. 1992).
Instantly, Bidwell takes issue with the three anonymous sources listed
in the affidavit of probable cause, whose reliability and basis of knowledge
were unknown to the police. Bidwell fails to overcome the fact that these
sources were provided in addition to a known confidential informant who
“ha[d] been deemed credible and reliable in the past through information
provided.” Affidavit of Probable Cause, 11/19/2010, at 4.
We have held that “[p]robable cause to support issuance of a search
warrant is present where facts and circumstances within the affiant’s
knowledge, of which he has reasonable trustworthy information, are
sufficient in themselves to warrant a man of reasonable caution in belief that
a search should be conducted.” Commonwealth v. Bruner, 564 A.2d
1277, 1282 (Pa. Super. 1989); see also Commonwealth v. Sudler, 436
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A.2d 1376 (Pa. 1981) (“[I]dentified citizens who report their observations of
criminal activity to police are assumed to be trustworthy, in the absence of
special circumstances.”). Therefore, Bidwell’s assertion that probable cause
is lacking because the officers failed to corroborate the anonymous
allegations in the warrant application is misplaced.13
In his next sub-issue, Bidwell argues that the trial court erred in
refusing to order the Commonwealth to disclose the identity of its
confidential informant.14 We disagree.
“Our standard of review of claims that a trial court erred in its
disposition of a request for disclosure of an informant’s identity is confined to
abuse of discretion.” Commonwealth v. Washington, 63 A.3d 797, 801
____________________________________________
13
We also reject Bidwell’s contention that probable cause is lacking
because the affidavit “fail[ed] to state that the canine was certified or
otherwise reliable in the detection of controlled substances.” Brief for
Bidwell at 26. It is well-established that an affidavit of probable cause “must
be viewed in a common sense, nontechnical, ungrudging and positive
manner.” Commonwealth v. Baker, 615 A.2d 23, 25 (Pa. 1992). Here,
the affidavit of probable cause stated that Corporal Nero “deployed K9 Niko
to conduct a narcotics sweep of the perimeter of vehicle. K9 Niko made a
positive alert to the presence of a controlled substance about the vehicle.”
Affidavit of Probable Cause, 11/19/2010, at 4. A common sense reading of
the affidavit of probable cause belies Bidwell’s argument that the magistrate
lacked information “that the canine was more than just an ordinary police
dog.” Brief for Bidwell at 27.
14
The confidential informant initially reported that Bidwell and Argot
would be returning from Philadelphia in a red tractor-trailer containing
methamphetamine for distribution. Affidavit of Probable Cause, 11/19/2010,
at 5.
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(Pa. Super. 2013). The Commonwealth enjoys a qualified privilege to
withhold the identity of a confidential source. Commonwealth v. Bing,
713 A.2d 56 (Pa. 1998); Commonwealth v. Roebuck, 681 A.2d 1279,
1283 n.6 (Pa. 1996). In order to overcome this qualified privilege and
obtain disclosure of a confidential informant’s identity, a defendant first must
establish that the information sought is material to the preparation of the
defense, and that the request is reasonable. Roebuck, 681 A.2d at 1283.
Only after a defendant makes such a showing is the trial court required to
determine whether the information should be revealed by balancing “the
public interest in protecting the flow of information against the individual’s
right to prepare his defense.” Commonwealth v. Marsh, 997 A.2d 318,
321-22 (Pa. 2010); Bing, 713 A.2d at 58. Other relevant factors include the
particular crime(s) charged, any possible defenses, and the potential
significance of the informer’s testimony. Marsh, 997 A.2d at 322.
Instantly, Bidwell has failed to make a showing sufficient to overcome
the Commonwealth’s qualified privilege to withhold the identity of its
confidential informant. Before the trial court, Bidwell asserted that the
confidential informant was fictitious, but failed to offer any support for his
claim.15 Moreover, even if Bidwell had made a compelling showing of
____________________________________________
15
Bidwell’s argument is weakened by the fact that the Commonwealth
disclosed the identity of one of the confidential sources used in the
preparation of the search warrant application. Because Kristen Wagner died
prior to Bidwell’s trial, and her safety was therefore no longer in danger, the
(Footnote Continued Next Page)
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materiality, his claim would still fail because “the disclosure of the identity of
an informant is not required when the safety of the informant would be
jeopardized.” Bing, 551 713 A.2d at 60. Here, the Commonwealth
presented evidence that the confidential sources used in the preparation of
the search warrant would be in danger of death or serious injury if their
identities were revealed. Indeed, the confidential sources explicitly stated
that they feared that Bidwell would physically harm or kill them if he learned
of their identities. N.T., 4/2/2012, at 16. The trial court also considered
Bidwell’s violent criminal history, and the fact that the instant charges
carried with them the possibility of a substantial period of incarceration.
Based upon this evidence, the trial court concluded that disclosing the
identity of the confidential sources would jeopardize their safety, and denied
Bidwell’s motion. We discern no abuse of discretion in that ruling.
In Bidwell’s fourth issue, he argues that the Commonwealth’s failure to
disclose the identity of the confidential source who told police that Argot
regularly sold him methamphetamine16 constituted a violation of Brady v.
_______________________
(Footnote Continued)
Commonwealth disclosed her identity. N.T., 4/2/2012, at 17. The
Commonwealth also supplied the defense with a recording of Wagner’s
statement to the police. Id. Despite this disclosure, Bidwell still maintains
that the Commonwealth has fabricated the confidential informant. See e.g.,
Brief for Bidwell at 22 (“If ordered to disclose the existence of the
informants, the Commonwealth could not have complied since they did not
exist.”).
16
This source was described in the affidavit of probable cause as follows:
“On 9/21/2010 after an individual was arrested for the possession of a
(Footnote Continued Next Page)
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Maryland, 373 U.S. 83 (1963). Bidwell’s argument on this point consists of
a single sentence summarizing the essential holding in Brady, followed by
an assertion that the Commonwealth violated Brady in failing to provide the
defense with the source’s identity. Bidwell provides no support for his claim
that the identity of the source was material to his defense, nor does he
explain how the trial court abused its discretion in denying his motion to
disclose the source’s identity. Accordingly, Bidwell has waived this issue due
to his failure to develop the argument in a manner sufficient to warrant our
review. See Pa.R.A.P. 2119(b); Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).
In his final issue, Bidwell maintains that the trial court erred in
“allowing [Corporal] Bray to testify that an eight ball [of methamphetamine]
was consistent with an intent to deliver.” Brief for Bidwell at 30. Bidwell
argues that “[Corporal] Bray had no support for his opinion other than the
testimony [of] Argot, Dehaan[,] and Kitchell . . . that Bidwell had shared
methamphetamine [with them] on prior occasions and [Corporal] Bray was
_______________________
(Footnote Continued)
controlled substance, the individual provided information about the person
who sells him narcotics. The individual identified Chase Argot as his drug
dealer.” Affidavit of Probable Cause, 11/19/2010, at 3.
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simply being used to bolster their credibility.” Brief for Bidwell at 31. This
claim is without merit.
The admission of evidence is committed to the sound discretion
of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Pugh, 101 A.3d at 822 (quoting Commonwealth v. Minich, 4 A.3d 1063,
1068 (Pa. Super. 2010)).
Here, Corporal Bray testified as an expert in drug trafficking, and
opined that the facts surrounding Bidwell’s possession of methamphetamine
were consistent with possession with intent to deliver. N.T., 5/7/2013, at
110, 164-65. Corporal Bray testified that the quantity of methamphetamine
found in Bidwell’s truck typically “would be re-packaged into a bunch of little
bags . . . and then sold in smaller quantities.” Id. at 161. Furthermore, the
certified record belies Bidwell’s contention that Corporal Bray based his
opinion solely upon the testimony of Argot, Dehaan, and Kitchell. Corporal
Bray also considered the quantity and packaging of the methamphetamine,
and the fact that the methamphetamine was in crystalline, rather than
powder, form. The trial court did not abuse its discretion in allowing
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Corporal Bray to testify that the amount of methamphetamine discovered in
Bidwell’s tractor-trailer likely was intended for distribution.17
For the foregoing reasons, the trial court erred in admitting evidence
of Bidwell’s prior drug deliveries under the auspices of Rule 404(b). Because
the certified record is devoid of any other compelling evidence of Bidwell’s
intent to deliver methamphetamine, we cannot conclude beyond a
reasonable doubt that the error was harmless. Accordingly, we vacate
Bidwell’s judgment of sentence and remand for retrial.
Judgment of sentence vacated. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2015
____________________________________________
17
In light of our holding that the trial court erred in admitting the
Commonwealth’s Rule 404(b) evidence, and because Corporal Bray based
his opinion, at least in part, upon that testimony, Corporal Bray’s expert
opinion necessarily may differ upon remand.
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