Com. v. Flowers, J., Jr.

J-S79032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES L. FLOWERS, JR., :
:
Appellant : No. 1004 MDA 2018
Appeal from the Judgment of Sentence June 14, 2018
in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000033-2017
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 28, 2019
James L. Flowers, Jr. (“Flowers”), pro se, appeals from the judgment of
sentence entered following his conviction of delivery of a controlled substance
(heroin) and criminal conspiracy.1 We affirm.
The trial court summarized the relevant history underlying the instant
appeal as follows:
A jury trial was held on April 3, 2018, on the [above-described
charges]. During the trial, [Flowers] chose to act pro se. Robert
Reedy, Esquire[,] was appointed as stand[-]by counsel. During
the trial, the Commonwealth presented evidence and testimony
related to a transaction for the sale of heroin that occurred on
August 26, 2016[,] at the residence located at 511 East Market
Street, Pottsville, PA. Trooper Christopher C. Keppel [(“Trooper
Keppel”)] testified that on that date[,] he was working undercover
for the Pennsylvania State Police. He arranged to meet Brittany
Geisinger [(“Geisinger”)] to purchase heroin. He met her at the
parking lot next to 511 East Market Street. He entered that
residence with [] Geisinger and they waited until [Flowers] and a
____________________________________________
1 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903.
J-S79032-18
white male entered. [Flowers] discussed with [] Geisinger who he
was. Trooper Keppel then testified that he conversed with []
Flowers about people they both knew. Trooper Keppel testified
that [Flowers] obtained an item from the white male and handed
it to him. Trooper Keppel gave [Flowers] $250.00. He then paid
[] Geisinger a finder’s fee of $40.00. The Commonwealth
presented evidence that the item that Trooper Keppel received
was heroin.
Trial Court Opinion, 8/17/18, at 1-2.
A jury subsequently convicted Flowers of the above-stated charges.
With the benefit of a pre-sentence investigation report, the trial court
sentenced Flowers to a prison term of two to four years for his conviction of
delivery of a controlled substance. For his conviction of criminal conspiracy,
the trial court imposed a concurrent prison term of two to four years. The
trial court credited Flowers for the time he served in jail between December
26, 2016, and April 10, 2017 (109 days). Thereafter, Flowers filed the instant
timely appeal. On June 18, 2018, Flowers filed a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal. On June 25,
2018, Flowers filed an “Amended Petition for 1925(b) Statement.”
Flowers presents the following claims for our review:
I. Did the trial court abuse [its] discretion thus, violating
[Flowers’s] right to due process, which resulted in prejudice
under [Pennsylvania] Rules of Criminal Procedure 571 and
587[,] by ignoring [his] Motion to Dismiss without [a]
hearing or directing the Commonwealth to show cause?
II. Did the trial court abuse its discretion pursuant to Pa.
Rule of Criminal Procedure 103 in violation of [Flowers’s]
due process rights when rendering an erroneous ruling upon
[Flowers’s] Motion in Limine?
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III. Did the trial court abuse its discretion by allowing the
jury to convict [Flowers of] criminal conspiracy after Motion
[sic] for a judgment of acquittal challenging [that the]
arresting officer’s testimony was insufficient to establish
conspiracy in accordance with 18 Pa.C.S.A. § 903?
IV. Did the trial court abuse its discretion by neglecting a
fatal variance between the Commonwealth’s discovery to
[sic] [Flowers] and evidence submitted to the jury under Pa.
Rule of Criminal Procedure 704(b), which resulted in a
Brady[2] violation and a deprivation of fundamental
fairness?
V. Did the trial court abuse its discretion by failing to
apply the exclusionary rule to determine if [the] arresting
officer entered the residence without warrant or whether
[the] person that provided access has common/apparent
authority to do so wherein, the independent source doctrine
protects against tainted evidence, fruit of the poisonous tree
and unlawfully obtained evidence?
VI. Did the Commonwealth invoke a “mandatory
presumption[,]” [t]hus prejudicing [Flowers] in the eyes of
the jury, which shifted the burden of proof that ultimately
affected the strength of “reasonable doubt and burden of
proof” during closing argument?
VII. Did the trial court abuse [its] discretion or misapply
the law where the trial court permitted the jury to consider
hearsay testimony over [Flowers’s] objection, which
displays partiality, bias and ill[-]will on the sole basis of
[Flowers’s] objection alone?
VIII. Did the trial court abuse [its] discretion or commit an
error of law by failing to provide [Flowers] proper time credit
for all time spent in custody as provided for by 42
Pa.C.S.[A.] § 9760[,] et seq.?
____________________________________________
2 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or to punishment).
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Brief for Appellant at 4-5.
Flowers first claims that the trial court improperly denied his Motions to
dismiss, filed pursuant to Pennsylvania Rules of Criminal Procedure 571 and
587, without a hearing. Brief for Appellant at 10. Flowers contends that he
was not arraigned within 10 days of the filing of the criminal Informations
against him. Id. In support, Flowers asserts that the Informations were
“initiated” on December 16, 2016, and filed on January 6, 2017. Id. Flowers
states that the “earliest date featured on the selected Informations is that of
1-6-2017, for the event ‘awaiting filing of informations.’” Id. Flowers relies
upon conflicting dates in the record in support of his claim that the case should
have been dismissed. Id. at 10-11.
Pursuant to Pennsylvania Rule of Criminal Procedure 571, arraignment
must take place “no later than 10 days after the information has been filed.”
Pa.R.Crim.P. 571. Rule 587 provides that “[u]pon motion and a showing that
an information has not been filed within a reasonable time, the court may
order dismissal of the prosecution, or in lieu thereof, make such other order
as shall be appropriate in the interests of justice.” Pa.R.Crim.P. 587(a)(1).
In its Opinion, the trial court addressed Flowers’s claim and concluded
that it lacks merit. See Trial Court Opinion, 8/17/18, at 4. Our review of the
record confirms the trial court’s assessment that the criminal Information was
filed on February 13, 2017, and that Flowers’s arraignment took place on
February 23, 2017, thereby complying with Rule 571. We therefore affirm on
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the basis of the trial court’s Opinion with regard to Flowers’s first claim. See
id.
In his second claim, Flowers argues that the trial court improperly
denied his Motion in Limine. Brief for Appellant at 11. Flowers contends that
“the arresting officer in this case gained access to [his] residence via an
individual who did not possess common or apparent authority to allow access
to law enforcement officials.” Id. According to Flowers, the officers were
investigating Geisinger at the time they entered the residence. Id. at 12.
Flowers contends that the officers should have investigated whether Geisinger
had common or apparent authority to grant access to his residence. Id.
Because the officers’ testimony establishes that Geisinger did not have
authority to grant access to Flowers’s residence, Flowers argues, the evidence
seized from him constituted fruits of the poisonous tree. Id. at 12-13.
Flowers further contends that the trial court improperly construed his Motion
in Limine as a habeas corpus filing, thereby depriving him of his right to due
process and equal protection. Id. at 13.
In its Opinion, the trial court addressed this claim and concluded that it
lacks merit. See Trial Court Opinion, 8/17/18, at 5-6. We agree, and affirm
on the basis of the trial court’s Opinion with regard to this claim. See id.;
see also N.T. (Omnibus Hearing), 4/6/17, at 26, 29 (wherein Flowers
acknowledges that the trial court was considering his Omnibus Motion at that
hearing).
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In his third claim, Flowers challenges the sufficiency of the evidence
underlying his conviction of criminal conspiracy. Brief for Appellant at 13.
Flowers asserts that he stood trial alone, and that the Commonwealth
presented no evidence that an agreement existed between himself and
another person. Id. According to Flowers, “the [C]ommonwealth put forth
absolutely no evidence of the volume or quality to overcome the presumption
of innocence.” Id.
As this Court has explained,
[a] claim challenging the sufficiency of the evidence presents a
question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and accept
as true all evidence and all reasonable inferences therefrom upon
which, if believed, the fact finder properly could have based its
verdict.
Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)
(citation omitted).
The trial court addressed Flowers’s challenge to the sufficiency of the
evidence underlying his conspiracy conviction, and concluded that it is without
merit. See Trial Court Opinion, 8/17/18, at 6-7. The trial court’s findings are
supported in the record, and its legal conclusions are sound. See id. We
therefore affirm on the basis of the trial court’s Opinion with regard to this
claim. See id.In his fourth claim, Flowers asserts that the trial court neglected a “fatal
variance” between the discovery produced by the Commonwealth and the
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evidence presented at trial. Brief for Appellant at 14. Flowers asserts that
“newly discovered evidence” demonstrates “perjured testimony, fraud upon
the court, entrapment and a Brady violation[.]” Id. In support, Flowers
directs our attention to the State Police Property Inventory, which, Flowers
asserts, varied from the evidence produced during discovery. Id. Flowers
also states that when Commonwealth Exhibit Number 9 was produced during
discovery, it did not include the signatures, dates, times or badge numbers of
officers, while the document produced at trial included such information. Id.According to Flowers, he did not become of aware of this until after trial. Id.
at 15. Flowers also directs our attention to the fact that the document was
not submitted by the arresting officer, but by another officer, which “renders
this case/conviction based upon second-hand evidence, perjured testimony
and a Brady violation.” Id. Flowers states that he preserved this claim in a
Motion for Extraordinary Relief. Id.
Our Supreme Court has explained that,
in order to establish a Brady violation, a defendant must show
that: (1) evidence was suppressed by the state, either willfully or
inadvertently; (2) the evidence was favorable to the defendant,
either because it was exculpatory or because it could have been
used for impeachment; and (3) the evidence was material, in that
its omission resulted in prejudice to the defendant. However,
[t]he mere possibility that an item of undisclosed information
might have helped the defense, or might have affected the
outcome of the trial, does not establish materiality in the
constitutional sense. Rather, evidence is material only if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.
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Commonwealth v. Williams, 168 A.3d 97, 109 (Pa. 2017) (internal citations
and quotation marks omitted).
In its Opinion, the trial court addressed this claim and concluded that it
lacks merit. See Trial Court Opinion, 8/17/18, at 7-8. We affirm on the basis
of the trial court’s Opinion with regard to this claim. See id.In his fifth claim, Flowers argues that the trial court erred by admitting
evidence obtained following the unlawful entry into his residence without a
warrant, or the permission of a person with apparent authority over the
residence. Brief for Appellant at 16. Referring to the exclusionary rule,
Flowers contends that the trial court failed to determine whether the officer’s
“entry/search of the residence in question[] was the product of proper
investigative procedures and whether permission obtained to conduct said
police action was within the proper/lawful constraints[.]” Id.“The admissibility of evidence is solely within the discretion of the trial
court and will be reversed only if the trial court has abused its discretion.”
Commonwealth v. Weber, 189 A.3d 1016, 1020 (Pa. Super. 2018) (citation
omitted). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.” Id. at 1020-21 (citation
omitted).
As our Supreme Court has explained,
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[t]he Fourth Amendment [to the United States Constitution]
protects the people from unreasonable searches and seizures. A
warrantless search or seizure is presumptively unreasonable
under the Fourth Amendment, subject to a few specifically
established, well-delineated exceptions. One such exception is a
consensual search, which a third party can provide to police,
known as the apparent authority exception.
A third party with apparent authority over the area to be
searched may provide police with consent to search. Third[-]party
consent is valid when police reasonably believe a third party has
authority to consent. Specifically, the apparent authority
exception turns on whether the facts available to police at the
moment would lead a person of reasonable caution to believe the
consenting third party had authority over the premises. If the
person asserting authority to consent did not have such authority,
that mistake is constitutionally excusable if police reasonably
believed the consenter had such authority and police acted on
facts leading sensibly to their conclusions of probability.
Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007) (internal citations
and quotation marks omitted). The determination of apparent authority must
be based on the totality of the circumstances, and if it is ambiguous whether
the third party has apparent authority, “a police officer should make further
inquiries to determine the status of the consenting party.” Commonwealth
v. Blair, 575 A.2d 593, 598 (Pa. Super. 1990).
In its Opinion, the trial court reasoned that the evidence was properly
admitted, stating, “Trooper Keppel testified that he was invited into the
residence by [] Geisinger to conduct the drug transaction. [Flowers] then
authorized him to stay when he arrived and completed the transaction.” Trial
Court Opinion, 8/17/18, at 8.
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At trial, Trooper Keppel testified that on August 25, 2016, while working
undercover, he arranged for the purchase of heroin through Geisinger. N.T.,
4/3/18, at 31-32. Trooper Keppel explained that he had engaged in
approximately eleven prior drug transactions with Geisinger. Id. at 41.
Geisinger directed Trooper Keppel to go to the parking lot next to 511 East
Market Street in Pottsville. Id. at 41. Trooper Keppel arrived at the parking
lot, at which time Geisinger walked from 511 East Market Street to the parking
lot. Id. at 32, 41. According to Trooper Keppel, “I met with [] Geisinger, and
I was instructed to come into the residence.” Id. at 32. Trooper Keppel
followed Geisinger into the residence. Id. at 33, 42. Two other women
entered the residence and, thereafter, Flowers entered the residence. Id. at
33. Trooper Keppel then testified as follows:
[Trooper Keppel]: … I did have a conversation with [] Flowers
about some people that he knew, he was asking me if I knew. I
advised him that I did. And at that time, we did conduct a
transaction for the heroin.
Q. [The Commonwealth]: And could you describe with great
particularity how that transaction transpired?
A. [] Flowers obtained an item from the white male, in [sic] return
handed it to me. I then exchanged him [sic] the $250 of official
funds.
I questioned the heroin because it wasn’t packaged how we
get it; and I was told it was five bundles, or a brick, although it
was a bundle in each bag rather than individually packaged.
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Id. at 34. Thus, the record supports the trial court’s determination, and we
discern no error or abuse of discretion in this regard. See Trial Court Opinion,
8/17/18, at 8. Accordingly, we cannot grant Flowers relief on this claim.
In his sixth claim, Flowers argues that the prosecutor committed
prosecutorial misconduct during his closing argument. Brief for Appellant at
17. Specifically, Flowers asserts that the prosecutor committed misconduct
when he stated, “[W]hy would this officer of the law, lie on [] Flowers[,] the
defendant?” Id. According to Flowers, this statement constituted “improper
opinion/bolstering of the officer’s testimony[.]” Id. Flowers asserts that the
prosecutor’s statement improperly shifted the burden of proof to Flowers,
causing him prejudice. Id.
Our review of the record discloses that Flowers failed to lodge any
objection to the prosecutor’s closing argument. Therefore, he has waived any
claim related thereto. See Commonwealth v. Sanchez, 82 A.3d 943, 969-
70 (Pa. 2013) (stating that, in order to preserve for appellate review an
objection to the opening or closing argument of opposing counsel, the
objection must be specific and brought to the attention of the trial court
as soon as practical). Further, even if Flowers had preserved this claim, we
would conclude that it lacks merit.
As our Supreme Court has explained, “[w]e review the trial court’s
rulings for abuse of discretion.” Id. at 981.
Although a prosecutor may comment on the credibility of
the defendant or other witnesses, it is improper for a prosecutor
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to express a personal belief as to their credibility. A prosecutor
may make fair comment on the admitted evidence and may
provide fair rebuttal to defense arguments. Even an otherwise
improper comment may be appropriate if it is in fair response to
defense counsel’s remarks. Any challenge to a prosecutor’s
comment must be evaluated in the context in which the comment
was made. The effect of the prosecutor’s remarks must be
evaluated in the context and atmosphere of the entire trial.
Moreover, not every unwise, intemperate, or improper remark
made by a prosecutor mandates the grant of a new trial.
Reversible error occurs only when the unavoidable effect of the
challenged comments would prejudice the jurors and form in their
minds a fixed bias and hostility toward the defendant such that
the jurors could not weigh the evidence and render a true verdict.
To constitute a due process violation, the prosecutorial
misconduct must be of sufficient significance to result in the denial
of the defendant’s right to a fair trial.
Id. (internal quotation marks and citations omitted).
In its Opinion, the trial court addressed Flowers’s claim and correctly
concluded that it lacks merit. See Trial Court Opinion, 8/17/18, at 8-9. Even
if Flowers had properly preserved this claim, we would agree with the trial
court’s assessment that the prosecutor’s comments “were not prejudicial or
unfair under the circumstances and considering the contents of [Flowers’s]
closing argument.” See id. at 9.
In his seventh claim, Flowers argues that the trial court improperly
admitted hearsay testimony. Brief for Appellant at 18. Specifically, Flowers
contends that the trial court improperly admitted Trooper Keppel’s testimony
regarding a communication between the Trooper and Geisinger, “for purposes
of justification for entering [Flowers’s] residence.” Id. According to Flowers,
the trial court “permitted the jury to hear a second-hand account (hearsay) of
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matters supposedly elicited from [] Geisinger.” Id. at 19. Flowers points out
that Geisinger did not testify at trial. Id. at 20.
In its Opinion, the trial court addressed Flowers’s claim and concluded
that it lacks merit. See Trial Court Opinion, 8/1718, at 9-10. We agree with
the sound reasoning of the trial court and affirm on this basis with regard to
Flowers’s seventh claim. See id.
Finally, in his eighth claim, Flowers argues that the trial court improperly
failed to give him credit for time that he served in custody, in accordance with
42 Pa.C.S.A. § 9760. Brief for Appellant at 21. According to Flowers, he is
entitled to credit for the time he served in custody following April 7, 2018, at
which time he was granted bail. Id. Flowers states that although he was
granted bail, he was not released from custody. Id.
Section 9760 provides, in relevant part, as follows:
Credit against the maximum term and any minimum term shall be
given to the defendant for all time spent in custody as a result of
the criminal charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
42 Pa.C.S.A. § 9760(1).
In its Opinion, the trial court addressed Flowers’s claim, and concluded
that he is not entitled to credit for time served as a result of his arrest on
different charges. See Trial Court Opinion, 8/17/18, at 3-4. Because the
record supports the trial court’s determination, we affirm on the basis of the
trial court’s Opinion with regard to this claim. See id.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/28/2019
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Circulated 01/28/2019 01:03 PM
IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PA
. CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, · CP-54-CR-000033-2017
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:J JAMES L. FLOWERS, JR., -<
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GOODMAN, J. ; -:-:-- :;
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The Defendant, James L. Flowers, JR has filed an app.eal from tne senlen�g
Order entered on June 14, 2018 against Defendant. On or about June 18, 2018, the
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) Defendant filed a 1925 (b) Statement in which he raised seven (7) issues with three to
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four subcategories for each issue. The Defendant has not set forth these issues in a
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clear or concise manner. On or about June 25, 2018, the Defendant filed an "Amended
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Petition for 1925 (b) Statement" raising a separate issue. As an amended petition
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typically replaces the original Petition, and the issues set forth in the original 1925 (b)
statement are neither clear nor concise, we believe that the Defendant has waived the
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issues raised in the original 1925 (b) statement. Nevertheless, we will address the
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. i issues raised in each document.
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A jury trial was held on April 3, 2018 on the charges of Delivery of a Controlled
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i Substance and Conspiracy to Deliver a Controlled Substance. During the trial, the
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Defendant chose to act pro se. Robert Reedy, Esquire was appointed as stand by
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counsel. During the trial, the Commonwealth presented evidence and testimony related
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L ., ; - · to a transaction for the sale of heroin that occurred on August 26, 2016 at the residence
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: I . located at· 511 East Market Street, Pottsville, PA Trooper Christopher C. Keppel
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testified that on that date he was working undercover for the Pennsylvania State Police.
1
f l
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Geisinger to purchase heroin. He met her at the parking
I
Street. He entered that residence with Miss Geisinger and
lot next to 511 East Market
Defendant and a white male entered. The Defendant discussed
they waited until the
r J · with Miss Geisinger who he was. Trooper Keppel then testified that he conversed with
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both knew. Trooper Keppel testified that the Defendant
i I Mr. Flowers about people they
l j the white male and handed it to him. Trooper Keppel gave the
obtained an item from
Defendant $250.00. He then paid Miss. Geisinger a finder's fee of $40.00. The
evidence that the item that Trooper Keppel received was
Commonwealth presented
heroin.
· Following the trial, the jury convicted the Defendant on both charges. On or about
a pre-sentence investigation report, the Defendant was
. l June 14, 2018 following
1 to imprisonment of 2 to 4 years and on the conspiracy
sentenced on the delivery charge
concurrent to the sentence on the delivery charge. He received
charge to 2 to 4 years
credit of 109 days for December 26, 2016 to April 10, 2017.
for 1925 (b) Statement, the Defendant asserts that he
In the Amended Petition
�l was denied credit for time
served in accordance with 42 Pa.C.S.A. § 9760. We have
from the Defendant's 1925 (b) statement.
derived the following issues
the Motion to Dismiss in which he
1. This trial court erred in denying
of the charges because he failed to receive an
requested dismissal
l
j arraignment within
ten (10) days of the filing of the information.
dismissing the Defendant's Motion in Limine
2. The trial court erred in
the admissibility of evidence obtained after a
seeking to challenge
warrantless, unlawful entry and unlawful police conduct.
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that. there was insufficient evidence to
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3. The Defendant asserts
support the conviction for criminal conspiracy.
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I the weight of the evidence against him
J. 4. The Defendant challenges
in that the Property Record Sheet submitted
and asserts a violation
contained different information that the
as evidence. during trial
sheet he received in discovery.
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5, The Defendant argues that the Exclusionary Rule applies because
the evidence was obtained from a residence in which the person
[] who authorized the entry by the arresting officer did not have the
authority to allow him to enter the residence.
rl
t 1 6. The Defendant contends . that the Commonwealth invoked a
mandatory presumption when the prosecutor commented on the
rJ veracity of the officer during the closing argument.
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7. The Defendant contends that this Court improperly dismissed his
(} objection to hearsay evidence and that the entry of hearsay
evidence impacted the verdict against him.
In the Amended Petition, the-Defendant contends that he did not receive proper
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credit for time .served. The Defendant asserts that he is currently serving a State
[] Corrections Institution sentence of 27 to 54 months for delivery of a controlled
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substance; possession with intent to deliver and possession of a controlled substance
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which was imposed on October 12, 2016 in case number 1181-2015. The Defendant
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asserts that while he was serving that sentence he was arrested for the charges in the
. .
instant case on December 23, 2016. On April 7, 2017, he was released for bail on this
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case following a bail hearing. He was not released from custody due to his
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incarceration in case number 1181-2015. He received credit in the instant matter for
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109 days from 12/26/2016 through 4/7/2017. He asserts that he was entitled to receive
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'l credit for the time periods from the arrest date of 12/23/2016 through present.
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The Defendant underlined the language that awards credit ''for all time spent in
:l custody under the former charge that has not been credited against another sentence."
,
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J. 42 Pa.C.S.A. § 9760. The Defendant is requesting time that was credited to the
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sentence in 1181-2015. In fact, the Defendant was not entitled to the 109 days credit
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I which was given to him as eligibility for pre-commitment credit is controlled by 42
Pa.C.S. 9760. This statute allows credit for all time spent in custody "as a result of the
criminal charge for which a prison sentence is imposed." Once an individual has been
3
sentenced by a Pennsylvania Court, he is no longer in custody as a result of a criminal
charge or charges for any other offense. After sentencing by any court, statutory
· eligibility to accumulate additional increments of creditable time has ended. Time spent
in custody after sentencing is applied towards satisfaction of the sentence being served ..
A sentenced prisoner is not entitled to receive a duplicate credit for this same period of
time on a separate sentence subsequently imposed for another offense.
Commonwealth v. Lloyd, 353 Pa. Super. 241, 509 A.2d 868 (1986).
Therefore, the Defendant is not entitled to additional credit.
In the 1925 (b) Statement, the Defendant first asserts that this Court erred in
r I denying the Motion to Dismiss in which he requested dismissal of the charges because
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he failed to receive an arraignment within ten (10) days of the filing of the information.
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l . By Order dated March 6, 2018 this Court denied the Motion to Dismiss. The sole basis
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for the Motion to Dismiss was the Defendant's contention that he was arraigned more
than 10 days after the information was filed in violation of Pa.R.Crim.P. 571. This Rule
: J provides that: "[u]nless otherwise provided by local court rule, or postponed by the court
r l for cause shown, arraignment shall take place no later than 10 days after the
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information has been filed." Pa.R.Crim.P. 571 The Defendant asserts that he produced
evidence that a criminal docket number was available before February 13, 2017 which
he contends proves the information was filed before that date. The record reflects that
the matter was held over following the preliminary hearing and a docket was created
J
I before February 13, 2017. However, the record clearly reflects that the criminal
information was filed on February 13, 2017- and the Defendant was arraigned on
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February 23, 2017. The Defendant was arraigned within ten days of the date on which
1 the information was filed.
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Second, the Defendant claims that this Court abused its discretion in
dismissing the Motion in Llrnlne. The Defendant filed a Motion in Limine on or
about January 29, 2018. The Commonwealth filed a response on or about
February 27, 2018. By Order dated March 6, 2018, this Court denied the Motion
in Limine as untimely in accordance with Pa.R.Crim.P. 578, which provides that
all pretrial requests for relief shall be included in one omnibus motion.
The Defendant did file an Omnibus Motion on which a hearing was held
on April 6, 2017. The Defendant challenges that he did not have the .opportunity
to present the suppression issues because the Omnibus Motion was improperly
treated as a Habeas Motion. Rather, a review of the record shows that the
1 Defendant raised the suppression issue for the first time in the Omnibus Motion.
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At the hearing, the Defendant elected to proceed pro se. He stated on several
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and have the charge of conspiracy dismissed. At the time he stated that he
wished to have the hearing on having the charges dismissed, the District
Attorney suggested that they not proceed and that stand by counsel be
appointed. The Defendant replied "Your honor, I am well aware of what I am
asking you right now, and I do not need the Commonwealth to speak for me at all
I am representing myself." Notes of Testimony, April
pertaining to what I need.
6, 2017 at page 22 The Court indicated that it could not even understand the
Omnibus Motion and asked the Defendant what he was seeking. He replied that
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J. he was asking to challenge the sufficiency of the evidence related to criminal·
1· ·conspiracy. The Court indicated that he would have his.hearing to challenge the
evidence.
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Thus, the Defendant filed an Omnibus Motion. He had a hearing at which
he had the opportunity to present evidence and cross-examine witnesses. At the
hea_ring he requested to have the criminal conspiracy-charge dismissed: At his
request, the Court treated the Omnibus hearing as a Habeas hearing. The Court
denied the Omnibus Motion on the record and entered an Order dated April 7,
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2017denying the Omnibus Motion that was treated as a Habeas Motion .. The
:l record is clear that the Defendant was afforded the opportunity to address the
suppression . issue. The Motion in Limine raising suppression issues was
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properly denied as untimely.
[l Third, the Defendant·challenges the sufficiency of the evidence as to criminal
l conspiracy. The Defendant asserts that the arresting officer's testimony was insufficient
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to establish criminal conspiracy as it is necessary for the Commonwealth to prove the
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A person is guilty of conspiracy with another person or persons to commit
:1 a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of
will
l engage in conduct which constitutes such crime or an attempt or
them
J solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
1I commission of such crime or of an attempt or solicitation to commit such
l J crime.
18 Pa.C.S.A. § 903 (a) "To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered into an agreement to
commit or aid in an unlawful act with another person or persons, (2) with a
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L j shared criminal intent and {3) an overt act was done in furtherance of the conspiracy."
· Com. v. McCall, 2006 PA Super 329, ,-i 6, 911 A.2d 992, 996. "An explicit or formal
agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof
of a criminal partnership is almost invariably extracted from the circumstances that
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attend its activities." Id. 'The conduct of the parties and the circumstances surrounding
their conduct may create a web of evidence linking the accused to the
alleged conspiracy beyond a reasonable doubt." Id. It is not necessary to establish the
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;1 conviction of a co-conspirator as even "the acquittal of an alleged conspirator in a
separate trial does not preclude finding his only alleged coconspirator guilty of
· conspiracy in subsequent proceedings." Com. v. Snowdy, 412 Pa. Super. 493, 502,
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'. j 603 A.2d 1044, 1048 (1992).
;- J Here the Commonwealth presented ample evidence of conspiracy through the
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testimony of Trooper Keppel as to the events on August 25, 2016. The testimony of
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l J Trooper Keppel reflects the following. While working in an undercover capacity with
r 1 several members of the state police and Schuylkill County Task Force, he met with Miss
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Geisinger to purchase heroin. He met her atthe parking lot next to the residence of 511
East Market Street, Pottsville, PA and they entered the residence. They waited until the
Defendant arrived with a white male. The Defendant spoke with Miss Geisinger and
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then the Defendant spoke with Trooper Keppel. The Defendant obtained heroin from
: J the white male who entered the residence with him. He gave the heroin to Trooper
Keppel in exchange for $250.00. Trooper Keppel then paid Miss Geisinger a Finder's
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Fee. The officer's testimony is sufficient to support the jury verdict of guilty as to the
conspiracy charge .
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: I Fourth, the Defendant challenges the weight of the evidence against him and
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,· 1 asserts a violation in that the Property Record Sheet submitted as evidence during trial
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contained different information that the sheet he received in discovery. Here the
;I Defendant contends that a Brady violation occurred because he did not receive
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' I Commonwealth Exhibit 9 before. trial but received Defense Exhibit 5 which is a property.
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record form that is not complete. The Defendant had ample opportunity to cross-
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examine the Commonwealth witnesses as to this evidence. The Defendant waived this
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issue but not raising it during trial. Furthermore, we do not believe that this issue rises to
a Brady challenge even if the Defendant received ah incomplete form as it does not
contain exculpatory evidence. ·
Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 283 (2008).
Fifth, the Defendant argues that the Exclusionary Rule applies because the
,r '1 evidence was obtained from a residence in which the person who authorized the entry.
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j by the arresting officer did not have the authority to allow him to enter the residence.
The Defendant had the opportunity to present evidence as to this issue at the Omnibus
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l j Hearing on April 6, 2017. He did not present any evidence at the time that Brittany
Geisinger did not have authority to allow Trooper Keppel to enter the residence. Further
it is well settled that [t]hird party consent is valid when police reasonably believe a third ·
party has authority toconsent," Commonwealth v. Strader, 931 A.2d 630, 634 (Pa.
2007). Trooper Keppel testified that he was invited into the residence by Miss Geisinger
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to conduct the drug transaction. The Defendant then authorized him to stay when he
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Sixth, the Defendant contends that the Commonwealth invoked a mandatory
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presumption when the prosecutor commented on the veracity of the officer during the
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closing argument. During closing argument, the prosecutor stated as follows:
We have to ·prove to you beyond a reasonable doubt that there was a drug
delivery committed on the 25th of August, 2016, and that the drug delivery
• j happened between Mr. Flowers and Trooper Keppel. And we have done
I · · ·· ... that through-the Trooper's own testimony. He told you what happened.
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He has no reason to get up there and just make something up about
. I somebody. If Brittany really did it, he has no reason to go up there and
I. say somebody else did it. He gave you 'the truth from the witness stand.
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And if you believe his testimony, then there is certainly evidence' here to
'! convict Mr. Flowers beyond a reasonable doubt..
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'j W� note initially that the Defendant did not object to the prosecutor's comments
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during the trial and that, therefore, this issue is waived. Further, "[i]t is well settled that
as tong as a prosecutor does not assert his personal opinions, he or she may, within
:l reasonable limits, comment on the credibility of a Commonwealth witness." Com. v.
Simmons, 541 Pa. 211, 247, 662 A.2d 621, 639 (1995). "This is especially true when
'. j the credibility of the witness has been previously attacked by the defense." Id.A review of the Defendant's closing argument shows that· he is challenging the
credibility of Trooper Keppel's testimony. He essentially asserts during closing
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argument that Brittany Geisinger was responsible for the transaction and that Trooper
lj Keppel never met him and did not conduct a sale of heroin with him. The
r 1 Commonwealth questions whether Trooper Keppel would have a reason to fabricate
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testimony. Even if this issue is not waived, the prosecutor's comments were not
prejudicial or unfair under the circumstances and considering the contents of the
Defendant's closing argument.
Finally, the Defendant contends that this Court erred in dismissing his objection
to hearsay evidence and that the entry of hearsay evidence impacted the verdict against
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I him. During the trial, the Defendant objected to hearsay on two occasions. He objected
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to Trooper Keppel's testimony that the Defendant had a brief conversation with Miss
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l. j Geisinger after he entered the residence. Notes of Testimony, April 3, 2018, at p. 34.
This objection was denied because the conversation involved the Defendant. He also
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objected to Trooper Keppel's testimony on redirect that Miss Geisinger stated to him
.. •;.. -- · ·-·- � _ . . ._ •...... - _ .._ ,. .._ � ..
"This Jimmy" when he entered the apartment. Notes of Testimony, April 3, 2018, at p.
34; This objection was denied because the Defendant opened the door to the testimony
as he had questioned the officer about whether Miss Geisinger introduced him.
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As to the first objection, "in criminal cases, this Court has consistently held
that a defendant's out-of-court statements are party admissions and are
exceptions to the hearsay rule." Com. v. Edwards, 588 Pa. 151, 183, 903 A.2d
1139, 1157-58 (2006) Therefore, Trooper Keppel's testimony as to the
Defendant's conversation was properly admitted. As to the second objection, a
review of the transcript shows that the Defendant extensively questioned Trooper
Keppel as to whether Miss Geisinger introduced them. Notes of Testimony, April
3, 2018, at p. 65. He clearly opened the door to the Commonwealth's question.
We further incorporate and attach our Orders dated April 7, 2017 and March 6,
2018 as part of the trial court opinion pursuant to P.R.A.P. 1925.
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