Com. v. Crumpler, L.

J-S19007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
LAMAR SHAREEF CRUMPLER :
:
Appellant : No. 1473 MDA 2016
Appeal from the Judgment of Sentence August 10, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001569-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 19, 2017
Appellant, Lamar Shareef Crumpler, appeals from the judgment of
sentence entered in the Franklin County Court of Common Pleas, following
his jury trial convictions of two counts of persons not to possess firearms
pursuant to 18 Pa.C.S.A. § 6105(a). We affirm.
The relevant facts and procedural history of this case are as follows.
State Trooper Rodney Fink utilized a confidential informant to conduct a
controlled purchase of heroin from Appellant in Franklin County on July 24,
2014, and August 5, 2014. As a result, Trooper Fink executed a search
warrant at Appellant’s home on August 6, 2014, and recovered two firearms,
heroin and marijuana packaged for sale, drug paraphernalia, and over
$12,000.00.
The Commonwealth charged Appellant with two counts each of
_____________________________
*Former Justice specially assigned to the Superior Court.
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persons not to possess firearms, delivery of a controlled substance,
possession with the intent to deliver a controlled substance (“PWID”),
criminal use of a communication facility, and one count of drug
paraphernalia. On July 27, 2015, Appellant pled guilty to the seven drug-
related counts and received a trial date for his two firearms charges. The
court sentenced Appellant on September 2, 2015, to an aggregate term of
four (4) to eight (8) years’ imprisonment for the drug convictions. Appellant
did not file a direct appeal. Instead, on June 10, 2016, Appellant timely filed
a pro se PCRA petition related to the drug convictions.
On July 5, 2016, Appellant proceeded to a jury trial on his two firearms
charges. At trial, the Commonwealth sought to offer evidence of Appellant’s
prior conviction to establish that he was prohibited from possessing a
firearm under Section 6105. Appellant objected to the Commonwealth’s
proffer of testimony from Detective Tony Brown of the Newark Police
Department, regarding Appellant’s prior conviction. Appellant made no offer
to stipulate to his prior conviction. Rather, Appellant argued that his prior
conviction was a “precondition” to charges under Section 6105; the prior
conviction was not an element of the Section 6105 offense. Therefore,
Detective Brown’s testimony was irrelevant to Appellant’s current firearms
charges. The court overruled the objection. Detective Brown testified that
on February 27, 2001, he arrested an individual named Khalib Forbes in New
Jersey for possession with intent to deliver cocaine within 1,000 feet of a
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school zone, which carries a sentence of three (3) to five (5) years’
imprisonment. See N.J.S.A. §§ 2C:35-7(a), 2C:43-6. Detective Brown
identified Appellant as the person he had arrested on February 27, 2001,
explained that Appellant had used the name Khalib Forbes as an alias, and
established that Appellant had pled guilty to that charge.
The jury convicted Appellant of both counts of persons not to possess
firearms. On August 10, 2016, the court sentenced Appellant to an
aggregate term of five (5) to ten (10) years’ imprisonment for the firearms
convictions. Appellant timely filed a notice of appeal on September 7, 2016,
and the court ordered him to file a concise statement of errors complained of
on appeal per Pa.R.A.P. 1925(b). Around the same time, Appellant filed a
motion to withdraw his pro se PCRA petition, which the court granted, and
reinstated his direct appeal rights nunc pro tunc from his September 2, 2015
judgment of sentence. Appellant timely filed an amended notice of appeal
on September 20, 2016, to include his September 2, 2015 judgment of
sentence. On September 21, 2016, the court ordered Appellant to file a new
Rule 1925(b) statement encompassing both judgments of sentence, which
he timely filed on October 11, 2016.
Appellant raises three issues for our review:
IS A PRIOR CONVICTION OF AN ENUMERATED OFFENSE
AN ELEMENT OF 18 PA.C.S.A. § 6105(A)?
DID THE TRIAL COURT ERR IN TREATING A PRIOR
CONVICTION OF AN ENUMERATED OFFENSE AS AN
ELEMENT OF 18 PA.C.S.A. § 6105(A) AND ALLOWING
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TESTIMONY RELATIVE TO A PRIOR CONVICTION OF AN
ENUMERATED OFFENSE TO BE PRESENTED TO THE JURY?
DID THE TRIAL COURT ERR BY INSTRUCTING THE JURY
TO CONSIDER EVIDENCE OF A PRIOR CONVICTION OF AN
ENUMERATED OFFENSE AS AN ELEMENT OF 18 PA.C.S.A. §
6105(A), AND TO MAKE A DETERMINATION OF
EQUIVALENCY BETWEEN…CONVICTIONS UNDER NEW
JERSEY AND PENNSYLVANIA STATUTES?
(Appellant’s Brief at 8).
For purposes of disposition, we combine Appellant’s issues.
Appellant’s overarching argument is that a prior conviction of an enumerated
offense is not an element of Section 6105 to be submitted to the jury.
Appellant cites Commonwealth v. Keiper, 887 A.2d 317 (Pa.Super. 2005)
for the proposition that a prior conviction of an enumerated offense is
merely a “precondition” to a charge under Section 6105. Appellant insists
the court improperly interpreted Section 6105 when it determined
Appellant’s prior New Jersey conviction was an element of the current
offenses. For this reason, Appellant states evidence of his prior conviction
was irrelevant at trial. Appellant also maintains the jury should not have
heard about his prior conviction because that evidence was unduly
prejudicial.
In a related vein, Appellant complains the court specifically instructed
the jury to consider Appellant’s prior conviction as an element of the current
offenses. Appellant asserts the instruction portrayed him as a person who
sold drugs to school kids.
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Likewise, Appellant insinuates the verdict slip induced the jury to make
an unnecessary determination that Appellant’s prior New Jersey conviction
was equivalent to an enumerated felony under Section 6105. For these
reasons, Appellant concludes he is entitled to a new trial. We disagree with
Appellant’s contentions.
“[T]he trial court’s application of a statute is a question of law that
compels plenary review to determine whether the court committed an error
of law.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super.
2008). See also Commonwealth v. Veon, ___ Pa. ___, ___ 150 A.3d
435, 444 (2016) (reiterating: “Statutory interpretation presents a question
of law, which we resolve de novo”).
Section 6105 of the Pennsylvania Uniform Firearms Act describes in
pertinent part the offense of persons not to possess firearms:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall
not possess, use, control, sell, transfer or manufacture or
obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
* * *
(c) Other persons.—In addition to any person who
has been convicted of any offense listed under subsection
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(b), the following persons shall be subject to the
prohibition of subsection (a):
* * *
(2) A person who has been convicted of an offense
under the act of April 14, 1972 (P.L. 233, No. 64), known
as The Controlled Substance, Drug, Device and Cosmetic
Act, or any equivalent Federal statute or equivalent statute
of any other state, that may be punishable by a term of
imprisonment exceeding two years.
* * *
18 Pa.C.S.A. § 6105(a)(1), (c)(2). Pennsylvania’s PWID statute is Section
780-113(a)(30) and in pertinent part provides:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
* * *
(30) Except as authorized by this act, the
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). New Jersey’s general PWID statute is found at
Section 35-5 of The New Jersey Code of Criminal Justice, and provides in
part:
2C:35-5. Manufacturing, distributing or dispensing
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(a) …[I]t shall be unlawful for any person knowingly or
purposely:
(1) To manufacture, distribute or dispense, or to
possess or have under his control with intent to
manufacture, distribute or dispense, a controlled
dangerous substance or controlled substance analog.
N.J.S.A. § 2C:35-5(a)(1). The New Jersey Code of Criminal Justice also
states in relevant part:
2C:35-7. Distributing, dispensing or possessing
controlled dangerous substance or controlled
substance analog on or within 1,000 feet of school
property or bus; penalty; defenses; approved or
revised map; prima facie evidence; official record
(a) Any person who violates subsection a. of N.J.S.
2C:35-5 by distributing, dispensing or possessing with
intent to distribute a controlled dangerous
substance...within 1,000 feet of…school property…is guilty
of a crime of the third degree and shall…be sentenced by
the court to a term of imprisonment. …
N.J.S.A. § 2C:35-7(a). Under New Jersey law, a person convicted of PWID
within 1,000 feet of a school zone is subject to a sentence of at least three
years’ imprisonment. See N.J.S.A. § 2C:43-6(a)(3).
A prior conviction of a specific, enumerated offense, or an equivalent
offense of another jurisdiction, is an essential element of the crime of
persons not to possess firearms under Section 6105. Commonwealth v.
Jemison, 626 Pa. 489, 98 A.3d 1254 (2014). The defendant can offer to
stipulate that his prior conviction disqualified him from possessing a firearm
under Section 6105. Id. The Commonwealth, however, is under no
obligation to agree to the defendant’s stipulation. Id. The Commonwealth
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can have the specific nature of the defendant’s prior conviction admitted into
evidence, over Appellant’s objection, to establish the prior-conviction
element of Section 6105. Id. The defendant is not subject to per se unfair
prejudice simply because the Commonwealth presents evidence of the
specific offense to establish the prior-conviction element of Section 6105.
Id. Any unfair prejudice depends on the facts and circumstances of the
particular case. Id.“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Mitchell, 588 Pa. 19, 56, 902 A.2d 430,
452 (2006), cert. denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897(2007). See also Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156
L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,
363, 781 A.2d 110, 117 (2001)). “An abuse of discretion may not be found
merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Commonwealth v. McClure, 144 A.3d 970, 975 (Pa.Super.
2016).
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).
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Relevant evidence is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Pa.R.E.
401. “Evidence is relevant if it logically tends to establish a material fact in
the case, tends to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.”
Drumheller, supra at 135, 808 A.2d at 904. Although relevant, evidence
may be excluded if its probative value is outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence. Pa.R.E. 403. “Unfair prejudice” means a tendency to
suggest decision on an improper basis or to divert the jury’s attention away
from its duty of weighing the evidence impartially. Id. “Evidence will not be
prohibited merely because it is harmful to the defendant.” Commonwealth
v. Dillon, 592 Pa. 351, 367, 925 A.2d 131, 141 (2007).
An equivalent offense of another jurisdiction “is that which is
substantially identical in nature and definition as the out-of-state or federal
offense when compared with the Pennsylvania offense.” Commonwealth v.
Bolden, 532 A.2d 1172, 1176 (Pa.Super. 1987). “To determine the issue of
equivalency, the necessary focus is on the elements of the offenses.”
Freeman v. Pennsylvania State Police, 2 A.3d 1259, 1262 (Pa.Cmwlth.
2010). “[I]t is the offense and not the statute of the other [jurisdiction] that
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must be essentially similar to the offense proscribed in Pennsylvania.” Id.Furthermore, we also compare “the conduct to be prohibited and the
underlying public policy of the two statutes.” Commonwealth v.
Robertson, 555 Pa. 72, 76, 722 A.2d 1047, 1049 (1999).
When reviewing a challenge to a jury instruction:
[W]e must review the jury charge as a whole to determine
if it is fair and complete. A trial court has wide discretion
in phrasing its jury instructions, and can choose its own
words as long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. The
trial court commits an abuse of discretion only when there
is an inaccurate statement of the law.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal
denied, 606 Pa. 644, 992 A.2d 885 (2010) (quoting Commonwealth v.
Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal denied, 599 Pa. 708,
962 A.2d 1196 (2008)). Importantly, a specific and timely objection is
essential to preserve a challenge to a particular jury instruction.
Commonwealth v. Forbes, 867 A.2d 1268, 1274 (Pa.Super. 2005).
Moreover, the failure to make a timely and specific
objection before the trial court at the appropriate stage of
the proceedings will result in waiver of the issue. See
Commonwealth v. Shamsud–Din, 995 A.2d 1224, 1226
(Pa.Super. 2010) (reiterating failure to object to jury
instruction constitutes waiver of error in charge);
Commonwealth v. duPont, 730 A.2d 970, 984–85
(Pa.Super. 1999), appeal denied, 561 Pa. 669, 749 A.2d
466 (2000), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663,
147 L.Ed.2d 276 (2000) (stating failure to object to
particular verdict sheet constitutes waiver of its use).
Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014). “If
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counsel states the grounds for an objection, then all other unspecified
grounds are waived and cannot be raised for the first time on appeal.”
Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa.Super. 2012), appeal
denied, 619 Pa. 678, 62 A.3d 379 (2013). See also Pa.R.A.P. 302(a)
(stating issues not raised before trial court are waived and cannot be raised
for first time on appeal).
Instantly, the Commonwealth charged Appellant with various offenses,
including two counts of persons not to possess firearms. At trial, the court
allowed the jury to hear Detective Brown’s testimony concerning Appellant’s
prior New Jersey PWID conviction. Appellant’s sole objection to the
testimony was based on its relevance to the current firearms charges.
Nevertheless, Jemison makes clear that a prior conviction is an element of
the charge of persons not to possess firearms. Detective Brown’s testimony
was relevant and material to identify and connect Appellant with his prior
New Jersey conviction, particularly where Appellant had used an alias in that
prosecution, and to establish its equivalence to an enumerated offense
under Section 6105. Detective Brown identified Appellant through the
fingerprints taken during the New Jersey action and established that
Appellant had pled guilty to a crime which the jury had to decide was the
functional equivalent of an enumerated offense under Section 6105. Given
the Jemison decision that the prior conviction is an element of the offense
at issue, Appellant’s reliance on the “precondition” language in Keiper is
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misplaced. See Jemison, supra at 501, 98 A.3d at 1261. Thus, we
conclude the evidence of Appellant’s New Jersey PWID conviction was
relevant at trial to establish identification of Appellant and the equivalency of
the New Jersey conviction for Section 6105 purposes.
To the extent Appellant complains on appeal that the evidence of his
New Jersey conviction, along with the court’s jury instruction and the verdict
sheet, was unfairly prejudicial, these claims are waived. Appellant’s sole
objection at trial (to the admission of evidence of his New Jersey conviction
and the jury instructions) was that a prior conviction is merely a
“precondition” to a charge under Section 6105, citing Keiper, and therefore
irrelevant. Appellant failed to object at any time to the evidence, the points
for charge, or the verdict sheet, on the basis of unfair prejudice. See
Houck, supra; Lopez, supra; Pa.R.A.P. 302(a).
Additionally, Appellant’s unfair prejudice claims are undeveloped and
vague on appeal. Appellant’s arguments for these claims consist of a few
conclusory statements, which lack any cogent nexus between relevant law
and the facts of his case. Thus, Appellant’s unfair prejudice claims on appeal
are waived on this ground as well. See Commonwealth v. Johnson, 604
Pa. 176, 985 A.2d 915 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250,
178 L.Ed.2d 165 (2010) (explaining appellant waives issue on appeal where
he fails to present claim with citations to relevant authority or develop issue
in meaningful fashion capable of review). Based upon the foregoing, we
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conclude Appellant’s challenge to the admission of his New Jersey conviction
merits no relief; and his issues regarding unfair prejudice at trial are waived.
Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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