Com. v. Thompson, C.

J-S94022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER MICHAEL THOMPSON
Appellant No. 681 MDA 2016
Appeal from the Judgment of Sentence March 9, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002384-2015
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 10, 2017
Appellant, Christopher Michael Thompson, appeals from the judgment
of sentence entered on March 9, 2016, following a jury trial resulting in his
conviction for possession with intent to deliver a controlled substance,
paraphernalia, simple possession, and criminal use of a communication
facility.1 We affirm.
On March 28, 2015, Sergeant Milo Hooper and Officer Nicholas Ishman
of the City of Harrisburg Police Department were conducting a routine
morning patrol in a high crime area. See Notes of Testimony (N. T.),
9/1/15, at 4-5, 11. Sergeant Hooper saw Appellant standing on the corner.
Id. at 5. When Appellant saw Sergeant Hooper, he turned and began
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1
35 P.S. §§ 780-113(a)(30), (a)(32), (a)(16), 18 Pa.C.S. § 7512,
respectively.
*
Former Justice specially assigned to the Superior Court.
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walking quickly east. Id. The officers circled the block, and Officer Ishman
got out of the car and proceeded on foot. Id. at 7.
Sergeant Hooper continued to drive and observed Appellant walking
with another individual towards a car.2 Id. at 8-9. Both men began to get
into the car but immediately stepped back upon seeing Sergeant Hooper.
Id. at 9. Sergeant Hooper asked Appellant if he could speak with him. Id.
at 9-10. Appellant appeared nervous and walked, then ran, away. Id. at 9-
10, 19. Sergeant Hooper spoke, instead, to Mr. Johnson, who admitted he
was there to meet with Appellant and purchase heroin. Id. at 11.
Officer Ishman also attempted to stop Appellant, but he continued to
run. Id. at 23-24. Additional officers responded to the area and, with
Officer Ishman, they stopped Appellant outside of 2604 North Sixth Street.
Id. at 25-26. Appellant gave incorrect information three times prior to
giving his correct name and birthday. Id. The officers ran Appellant’s
information and found an active arrest warrant. Id. at 26-27. Officers then
placed Appellant under arrest and searched him incident to arrest. Id. The
search revealed that Appellant possessed a bundle of heroin and a cell
phone.3 Id. at 27.
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2
Appellant’s companion was later identified as Jack Johnson. At trial, Mr.
Johnson testified on behalf of the Commonwealth. See infra.
3
A “bundle” is approximately ten bags of heroin. Id. at 27.
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Prior to trial, Appellant moved to suppress the narcotics seized from
him, arguing that officers lacked reasonable suspicion or probable cause to
detain him. See Motion to Suppress, 7/24/15, at 1-4. Following a hearing
in September 2015, the suppression court issued a memorandum opinion
denying Appellant’s motion to suppress. See Suppression Court Opinion
(SCO), 10/27/15, at 5-6. Specifically, the court found that based on the
totality of the circumstances, officers possessed reasonable suspicion to stop
Appellant due to his nervousness and flight in a high-crime area. Id.
Accordingly, the court concluded, the officers properly conducted an
investigatory detention of Appellant and the subsequent search and seizure
was constitutional. Id.
In January 2016, the matter proceeded to trial by jury. Jack Johnson
testified that, at some time prior to March 2015, he met Appellant in a
convenience store and they exchanged phone numbers. See N. T., 1/12/16,
at 17-18. Mr. Johnson saved Appellant’s number in his phone under the
initial “C.” Id. Approximately one week later, Mr. Johnson contacted
Appellant and purchased heroin from him. Id. at 19, 21. On March 28,
2015, Appellant sent Mr. Johnson a text message asking if he was “looking
for anything.” Id. at 21-22. Mr. Johnson replied to the text message that
he needed five bags of heroin, and the two made arrangements to meet.
Id. at 27-30. At this meeting, as Mr. Johnson and Appellant spoke, a police
car pulled up near them. Id. at 29-30.
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Sergeant Hooper and Officer Ishman testified to the same facts elicited
at the suppression hearing. Id. at 46-65, 75-83. After taking Appellant into
custody, the officers had Mr. Johnson call the number for “C” from his cell
phone, and Appellant’s cell phone rang. Id. at 84.
The Commonwealth also introduced Detective John Goshert as an
expert witness. Id. at 110. Detective Goshert testified that Appellant
possessed the heroin with the intent to deliver, due to 1) the location of the
incident; 2) the interactions between the two men; 3) Mr. Johnson’s
statements; and 4) the text messages exchanged between Appellant and Mr.
Johnson.. Id. at 118-120.
Following trial, the jury convicted Appellant of all charges set forth
above.4 Appellant was sentenced on March 9, 2016, to an aggregate of one
and one-half to three years of incarceration followed by two years of state
probation. He filed a post sentence motion which the trial court denied.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
suppression court and trial court issued responsive opinions.
On appeal, Appellant raises the following issues for our review:
I. Whether the trial court erred in denying Appellant’s motion to
suppress evidence where the police officer illegally detained,
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4
The jury acquitted Appellant of resisting arrest, 18 Pa.C.S. § 5104.
Another charge, flight to avoid apprehension, 18 Pa.C.S. § 5126, was
withdrawn.
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searched, and seized Appellant in violation of Article I, Section 8
of the Pennsylvania Constitution and the Fourth Amendment to
the United States Constitution?
II. Whether the Commonwealth failed to present sufficient
evidence to sustain Appellant’s conviction where the
Commonwealth did not prove that Appellant possessed the drugs
with the intent to deliver or use a cell phone to conduct said
delivery?
III. Whether the trial court erred in denying Appellant’s post
sentence motion where the verdict was against the weight of the
evidence so as to shock one’s sense of justice where the
Commonwealth never showed, inter alia, that [Appellant]
actually possessed the drugs with the intent to deliver, or used a
cell phone to conduct said deliver?
Appellant’s Brief at 7 (unnecessary capitalization and responses omitted).
Appellant first claims that the suppression court erred in denying his
motion to suppress evidence. See Appellant’s Brief at 20. Appellant
contends that the first contact between Appellant and the officers was a
mere encounter with no attendant duty to stop and that, accordingly, the
subsequent chase and arrest were illegal. Id. at 22. In the alternative,
Appellant argues there was no reasonable suspicion to stop him, because his
flight was not unprovoked. Id. at 25-26.
Our standard of review for an appeal denying a motion to suppress is
well settled.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
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
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as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these 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 our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations
omitted).
Appellant’s claims turn on the nature of the encounter between
Appellant and the police.
There are three types of encounters between law enforcement
officials and private citizens. A “mere encounter” need not be
supported by any level of suspicion but carries no official
compulsion to stop or respond. An “investigative detention”
must be supported by reasonable suspicion and subjects the
suspect to a stop and a period of detention, but it does not have
the coercive conditions that would constitute an arrest. The
courts determine whether reasonable suspicion exists by
examining the totality of the circumstances. An arrest, or
“custodial detention,” must be supported by probable cause.
In re J.G., 145 A.3d 1179, 1185 (Pa. Super. 2016).
It is undisputed that the initial contact between Appellant and the
police was a mere encounter. See Commonwealth v. Lyles, 97 A.3d 298,
303 (Pa. 2014) (noting that a seizure does not occur where officers merely
approach a person in public and question the individual or request to see
identification). However, after police approached Appellant, he fled without
justification. It is well-settled that unprovoked flight in a high crime area is
sufficient to create a reasonable suspicion to justify an investigatory stop.
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See In the Interest of D.M., 781 A.2d 1161, 1163–64 (Pa. 2001); see
also Commonwealth v. Washington, 51 A.3d 895, 898 (Pa. Super. 2012)
(“nervous, evasive behavior and headlong flight all provoke suspicion of
criminal behavior in the context of response to police presence”);
Commonwealth v. McCoy, --- A.3d ---, at *4, 2017 Pa. Super. 20 (filed
1/27/17) (noting that Appellant’s evasive and suspicious behavior in a high
crime area, his unprovoked flight, and officers’ training and experience,
provided requisite reasonable suspicion).
Here, the suppression court correctly concluded that the totality of the
circumstances established that police had the requisite reasonable suspicion
to pursue Appellant, where: he fled unprovoked from police; police again
encountered Appellant walking with another individual towards a car;
Appellant did not get into the car when he saw police; Appellant was
nervous, evasive, and standoffish; and Appellant again ran away.
Accordingly, the trial court did not err in concluding that police possessed
reasonable suspicion to stop Appellant.5 See McCoy, --- A.3d --- at *4.
Next, Appellant claims that the evidence was not sufficient to sustain
his convictions for possession with intent to deliver and criminal use of a
communication facility, where the Commonwealth did not prove that
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5
The stop led to the police being able to identify Appellant, which in turn
revealed an active warrant for his arrest. Appellant was not searched until
he had been placed under arrest.
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Appellant possessed the drugs with intent to deliver or use a cell phone to
conduct their delivery. See Appellant’s Brief at 32.
We note that in evaluating a challenge to the sufficiency of the
evidence, we must determine whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner,
together with all reasonable inferences therefrom, the trier of
fact could have found that each and every element of the crimes
charged was established beyond a reasonable doubt. We may
not weigh the evidence and substitute our judgment for the fact-
finder. To sustain a conviction, however, the facts and
circumstances which the Commonwealth must prove must be
such that every essential element of the crime is established
beyond a reasonable doubt.
Commonwealth v. Little, 879 A.2d 293, 296–97 (Pa. Super. 2005)
(internal citations omitted).
First, we consider whether the Commonwealth presented sufficient
evidence to sustain Appellant’s conviction for possession with intent to
deliver. Section 780-113(a)(30) of The Controlled Substance, Drug, Device
and Cosmetic Act prohibits the following acts:
[T]he manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person not
registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113(a)(30). The Commonwealth establishes the offense of
possession with intent to deliver when it proves beyond a reasonable doubt
that the defendant possessed a controlled substance with the intent to
deliver it. See Little, 879 A.2d at 297.
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Appellant acknowledges that he possessed the drugs. See Appellant’s
Brief at 33. However, Appellant challenges the credibility and reliability of
Detective Goshert’s testimony, arguing that it did not establish that
Appellant possessed the heroin with the requisite intent to deliver. Id. at
34. This is essentially a challenge to the weight rather than the sufficiency
of the evidence. See, e.g., Commonwealth v. Wilson, 825 A.2d 710,
713-14 (Pa. Super. 2003) (a review of the sufficiency of the evidence does
not include an assessment of the credibility of testimony; such a claim goes
to the weight of the evidence). In such cases,
“[w]hen the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.”
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)
(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super.
2004) (citation omitted)); see also Commonwealth v. Hankerson, 118
A.3d 415, 420 (Pa. Super. 2015) (noting that this Court may not re-assess
the credibility of a witness’ testimony when ruling on a weight of the
evidence claim).
In the instant case, Detective Goshert’s testimony and opinion were
based on facts in the record, his extensive experience and training in illegal
narcotics trafficking, and his personal participation in drug investigations and
arrests. See N. T., 1/12/16, at 118-121. It was the jury’s role to evaluate
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this testimony and give it such weight as they saw fit, and we decline to
reassess that determination. Further, as the trial court correctly noted, the
jury also was free to credit Mr. Johnson’s testimony that he had set up the
encounter in order to buy heroin from Appellant. See TCO at 5.
Accordingly, we decline to reassess this credibility determination on appeal.
See Hankerson, 118 A.3d at 420.
Appellant also challenges the sufficiency of the evidence to sustain his
conviction for criminal use of a communication facility. See Appellant’s Brief
at 35. Specifically, he argues that the text messages introduced as evidence
were not properly authenticated. Id. at 36-37.
The offense of criminal use of a communication facility is defined in
relevant part as follows:
(a) Offense defined.--A person commits a felony of the third
degree if that person uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the act
of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act. Every instance
where the communication facility is utilized constitutes a
separate offense under this section.
…
(c) Definition.--As used in this section, the term
“communication facility” means a public or private
instrumentality used or useful in the transmission of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part, including, but not limited
to, telephone, wire, radio, electromagnetic, photoelectronic or
photo-optical systems or the mail.
18 Pa.C.S. § 7512.
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The Commonwealth presented the following evidence: Mr. Johnson
had saved Appellant’s number in his phone as “C.” Officer Ishman testified
that when he called “C” from Mr. Johnson’s cell phone, Appellant’s phone
rang. Mr. Johnson testified that he had texted Appellant to set up a drug
transaction. Viewed in the light most favorable to the Commmonwealth, its
evidence was sufficient to establish that Appellant had used a cell phone to
arrange a drug transaction. Little, 879 A.2d at 296–97.
Finally, Appellant claims that the trial court erred in denying his post
sentence motion asserting the verdicts were against the weight of the
evidence. See Appellant’s Brief at 37. Appellant contends that the verdicts
were so against that weight as to shock one’s sense of justice, because the
Commonwealth never showed that Appellant actually possessed the drugs
with the intent to deliver or used a cell phone to arrange the sale. Id.
The law regarding weight of the evidence claims is well-settled.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one’s sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
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Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
Appellant claims that Mr. Johnson’s testimony was contradictory to the
evidence in the case, unreliable due to his prior crimen falsi and pending
criminal charges, and inconsistent with the remainder of the evidence
introduced at trial. See Appellant’s Brief at 38-39. However, the jury heard
all of the evidence and was free to believe or disbelieve Mr. Johnson’s
testimony as they saw fit. See Hankerson, 118 A.3d at 420. Mr. Johnson
was clear that he text-messaged Appellant to buy heroin. Further, he
testified that he met with Appellant in order to buy heroin. His testimony
was supported by expert testimony. Accordingly, we decline to find that the
trial court abused its discretion. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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