Com. v. Thompkins, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE WADE THOMPKINS :
:
Appellant : No. 980 WDA 2017
Appeal from the Judgment of Sentence March 14, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003412-2013
BEFORE: OLSON, J., OTT, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 09, 2018
Bruce Wade Thompkins appeals from the judgment of sentence imposed
on him on March 14, 2017, in the Court of Common Pleas of Westmoreland
County following his conviction by jury on charges of possession of a controlled
substance (heroin) with intent to deliver, possession of a controlled substance,
and possession of drug paraphernalia.1 Thompkins received an aggregate
sentence of two to four years’ incarceration, followed by three years’
probation. In this timely appeal, Thompkins raises three issues. He claims
the trial court erred in allowing the Commonwealth to introduce prior bad acts
testimony pursuant to Pa.R.E. 404(b); the trial court erred in failing to
suppress evidence obtained by a stale search warrant, that had been
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 Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 113-780(a)(30), (a)(16), and (a)(32), respectively.
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improperly issued based upon double hearsay; and the verdict was against
the weight of the evidence. Following a thorough review of the certified
record, relevant law and the submissions by the parties, we affirm.
Initially, we address Thompkins’ evidentiary challenges. Our standard
of review for this matter is as follows:
In reviewing a trial court's ruling on the admissibility of evidence,
our standard of review is one of deference. It is firmly established
that “[q]uestions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and [a reviewing
court] will not reverse the court's decision on such a question
absent a clear abuse of discretion.” Commonwealth v. Chmiel,
588 Pa. 478, 738 A.2d 406, 414 (1999).
Commonwealth v. Giles, 182 A.3d 460, 461-62 (Pa. Super. 2018).
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.
Commonwealth v. Radecki, 180 A.3d 441, 451 (Pa. Super. 2018) (citation
omitted).
The following facts have been gleaned from the certified record.
Thompkins and his co-defendant, Michelle Muck, came to the attention of the
authorities after a run-in between Thompkins and a neighbor, who had taken
a photograph of a car in front of the Thompkins/Muck residence. The neighbor
thought drugs were being sold from the residence. Thompkins confronted the
neighbor and the neighbor drew a handgun and fired it into the air. The police
were called to the scene, but apparently no charges were filed. The police
set up surveillance of the residence and witnessed Muck engage in suspicious
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activity that gave the appearance of drug dealing. Thompkins was seen
driving to a local hotel by a roundabout route, which police found suspicious.
However, security footage taken from the hotel revealed Thompkins did
nothing illegal. Thompkins was also seen walking to a nearby drug store
where he met with a known heroin user, Bruce Clawson. Evidence at trial
demonstrated that Clawson and Muck were previously neighbors in an
apartment building and that all three, Clawson, Muck and Thompkins, knew
each other prior to Thompkins and Muck moving into the house together. After
briefly meeting, the two men parted and Clawson entered the drug store.
Police went into the store after Clawson exited and found a “scrape bag” in
the garbage can of the drug store washroom. A scrape bag is a term for an
empty bag that had contained drugs. There was no indication that this bag
had any identifying markings on it. Neither was there any specific evidence
that the bag came from either Clawson or Thompkins.
Other evidence from surveillance demonstrated that Muck met with
several known heroin users in a pattern that suggested drug transactions had
taken place. However, no one was arrested because of these meetings, so no
drugs were ever recovered.
On May 4, 2013 at approximately 11:50 a.m., Muck was seen meeting
with Clawson. Clawson was with another male, Chauncey Myers. Clawson
got into Muck’s vehicle and the two traveled to her home. Approximately one-
half hour later, Clawson met with Myers in a local park and the two men
walked into a nearby alley. Shortly thereafter, the two men parted ways.
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Police initiated contact with Myers who admitted he possessed drugs.
Specifically, Myers had six packets of heroin in bags stamped “The Joker”.
Myers claimed he obtained the drugs from Clawson who had obtained the
drugs in the Muck/Thompkins residence. Myers then agreed to become a
confidential informant; however, he died sometime shortly thereafter.2 Based
on the surveillance and the statement from Myers, the police obtained a
search warrant for the Muck/Thompkins residence that was executed later that
afternoon.
Resulting from the search, the police found five packets of heroin
between the mattress and box spring in Thompkins’/Muck’s bedroom. There
was also over $600.00 in cash in a bowl of water near the bed. In the
basement of the house, the police found an additional 90 packets of heroin in
a candle box on top of the washing machine. These packets were stamped
with “The Joker” and “Sucker Punch”. Police also found a marijuana pipe (with
residue in it) and a grinder, typically used to grind marijuana buds into
smokeable marijuana.
Prior to trial, the Commonwealth filed a document stating the intention
to present prior bad act testimony pursuant to Pa.R.E. 404(b). This testimony
included proposed testimony from Clawson that he had made several prior
purchases of heroin from Thompkins and that on May 4, 2013, after Muck
brought him to her residence, he actually bought the drugs from Thompkins.
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2There is no indication in the record of how Myers died. Accordingly, there is
no suggestion that his death was related to this investigation.
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There is no formal response to the Pa.R.E. 404(b) notice in the certified
record. On the day of the trial, the issue was discussed and counsel for
Thompkins objected to the use of a subsequent encounter between Thompkins
and Clawson wherein Thompkins allegedly claimed he did not have any heroin
available but could supply crack cocaine. This reference was eventually ruled
inadmissible. No pre-trial objection was raised regarding Clawson’s proposed
testimony regarding prior sales of heroin. The trial court allowed that
testimony on the grounds that it helped demonstrate Thompkins’ intent to sell
heroin.
Thompkins’ first claim is that the trial court erred in allowing evidence
of prior bad acts. Specifically, Thompkins argues Clawson should not have
been allowed to testify regarding any alleged prior sales of heroin. Thompkins
argues he was not charged with any of the prior alleged sales, and the
evidence was highly prejudicial.
As noted above, this argument was not raised before the trial court. “It
is well settled that, ‘in order to preserve an issue on appeal, a party must
lodge a timely objection.’” Commonwealth v. Gonzalez, 112 A.3d 1232,
1240 (Pa. super. 2015) (citation omitted). Accordingly, this issue is waived.
Next, Thompkins raises two claims regarding the search warrant used
to obtain physical evidence from his residence. First, he claims the warrant
had expired; second, he claims the warrant was improperly based upon double
hearsay. Neither claim warrants relief.
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Thompkins argues the search warrant had an expiration time of May 4,
2013, 2:50 p.m. and the warrant was not executed until May 4, 2013, at 3:04
p.m. He is technically correct. However, a hearing on this issue was held
prior to trial. The issuing authority, Magisterial District Judge Frank A. Pallone,
testified the expiration date was a clerical error. The intended expiration date
was May 6, 2013, at 2:50, p.m. - 48 hours after the search warrant was
issued. MDJ Pallone further testified it was his absolute habit and practice to
provide police 48 hours to execute a search warrant. The trial court noted in
its December 18, 2014 order supporting the denial of Thompkins’ motion to
suppress, that the warrant was also issued on May 4, 2013 at 2:50 p.m., the
same time it was set to expire. Our review of the certified record confirms
this fact. The trial court found MDJ Pallone’s testimony to be credible,
supporting that determination, in part, by the observation that it made no
sense for a search warrant to be issued and to expire at the same time. See
Order, 12/18/2014 at 1.
Our Court has previously held, regarding misstatements of fact within
the affidavit of probable cause, “that misstatements of fact will invalidate a
search warrant and require suppression of the fruits of the search only if the
misstatements of fact are deliberate and material.” Commonwealth v.
Yerger, 482 A.2d 985, 990 (Pa. Super. 1984) (citation omitted) (emphasis in
original). We believe the instant circumstances, where the issuing authority
credibly testifies he committed a clerical error in listing the expiration date of
the search warrant as the same time as the issuance time of the search
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warrant, and where the warrant was executed less than 15 minutes after
issuance, Yerger similarly applies. To invalidate a search warrant based upon
such an obvious clerical error would represent merely a hyper-technical
interpretation of the law. In the instant matter, such an interpretation would
not serve the greater interests of justice.
Additionally, Thompkins argues the warrant was invalid because it was
based on double hearsay – specifically, Myers’ statement to the police that
Clawson told him that he got the drugs at the Muck/Thompkins residence.
This claim affords Thompkins no relief.
A search warrant can be based on hearsay as long as under the totality
of the circumstances there is probable cause to believe the contraband in
question will be found at the location in question. As this Court explained:
However, “[the law] is well settled that an affidavit may be based
on hearsay and need not reflect direct personal observation of the
affiant.” Commonwealth v. Klimkowicz, 331 Pa. Super 75, 80,
479 A.2d 1086, 1089 (1984). Indeed, “an affidavit which contains
hearsay upon hearsay need not be categorically rejected. Rather,
‘double hearsay’ must be evaluated in conjunction with the other
information in the affidavit to determine whether the information
is reliable.” Commonwealth v. Kleindienst, 403 Pa. Super. 605,
612, 589 A.2d 1119, 1123 (1991).
Commonwealth v. Singleton, 603 A.2d 1072 (Pa. Super. 1992).
Here, the statement made initially by Clawson to Myers, then related by
Myers to the police, was supported by the independent surveillance by the
police that showed Myers met with Clawson, Clawson met with Muck and
travelled with her in her car to her residence, shortly thereafter Clawson met
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with Myers and almost immediately after that Myers was approached by the
police and was found to be carrying drugs. The statement that the drugs
originated at the Muck/Thompkins residence matched the surveillance
evidence developed by the police. Accordingly, the affidavit of probable cause
is not infirm due to improper reliance on hearsay.
We now address Thompkins’ weight of the evidence claim. 3 When
examining a weight of the evidence claim,
The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court’s decision has record
support. Where the record adequately supports the trial
court, the trial court has acted within the limits of its
discretion.
***
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived
at a different conclusion. Rather, the role of the trial judge
is to determine that notwithstanding all the facts, certain
facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny
justice.
***
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the
standard of review applied by the trial court. Appellate
review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054-55
(2013) (quotation marks, quotations, and citations omitted). In
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3Thompkins makes no argument regarding his conviction on the charge of
possession of drug paraphernalia (marijuana pipe).
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order for an appellant to prevail on a challenge to the weight of
the evidence, “the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super.
2003) (quotation marks and quotations omitted).
Commonwealth v. Rodriguez, 174 A.3d 1130, 1139-40 (Pa. Super. 2017).
Here, the trial court related the evidence provided at trial of witnesses:
1) Detective John Sleasman, who found the box containing 90 packets of
heroin, several packets of which were stamped “The Joker” which was the
identical stamp found on the drugs Myers possessed; 2) Stacy Cox, a forensic
scientist who confirmed more than five grams of heroin was confiscated from
the Muck/Thompkins residence; 3) Detective Tony Marcocci, who testified the
amount of drugs and cash found, along with the lack of any heroin
paraphernalia indicating anyone in the residence personally used heroin
indicated the heroin was possessed for distribution; and 4) Bruce Clawson,
who testified regarding prior purchases of heroin from Thompkins and that he
never witnessed either Thompkins or Muck use heroin. The trial court
determined the totality of this evidence supported the jury’s guilty verdict.
We find no abuse of discretion therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2018
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