Com. v. Rice, T.

J-A11011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
THOMAS RICE
Appellant No. 1162 MDA 2017
Appeal from the Judgment of Sentence entered April 19, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001601-2016
BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 14, 2018
Appellant, Thomas Rice, appeals from the April 19, 2017 judgment of
sentence entered in the Court of Common Pleas of Dauphin County following
his conviction of possession with intent to deliver (“PWID”), conspiracy, and
related offenses. Appellant claims the evidence was insufficient to prove the
offenses, asserts trial court error for admitting evidence of a prior drug sale,
and alleges an assistant district attorney committed prosecutorial misconduct.
Following review, we affirm.
The trial court summarized the facts of this case as follows:
On August 15, 2015, officers from the City of Harrisburg
Police Department (“HPD”) responded to a report of a shooting at
1249 Market Street—an apartment building wherein Keyonda
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* Retired Senior Judge assigned to the Superior Court.
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Brown and her sister, Janeisha Chambers, rented a three (3)
bedroom apartment on the third floor. [Appellant] was in an
intimate relationship with Ms. Brown and stayed with her in the
apartment on and off for approximately six (6) months and had
moved some personal items, such as a safe and a bin of clothing,
into the residence a week before the incident. Karen Lyda, a
forensic investigator, Dennis Simmons, a detective, and
Christopher Thomas, a patrol officer, responded to the call and
testified during trial.
When Detective Simmons arrived on scene he was advised
that a male victim was shot multiple times and transported to
Hershey Medical Center. He observed a trail of blood on the south
side of the apartment building, and followed it up the fire escape
into apartment number 2. Once in the apartment, he conducted
a preliminary walk through, and then returned to the police station
to interview the two (2) witnesses—Ms. Brown and Ms. Chambers.
Ms. Brown advised Detective Simmons that she was out of
the residence from approximately 10:00 P.M. until 2:00 A.M. the
night of the shooting. Ms. Brown took a shower when she
returned home, and upon exiting from the shower heard multiple
gunshots. A few minutes later, she exited the residence through
the back door and observed [Appellant] laying [sic] in a pool of
blood on the second floor fire escape. Ms. Brown advised
Detective Simmons that she also observed two (2) dark-skinned
black males in the area, and heard [Appellant] tell one of the
males to take the stuff out of his pocket. Thereafter, she rendered
aid to [Appellant] and called 9-1-1.
Due to observing some illegal items in plain view within the
residence, Ms. Brown was Mirandized before Detective Simmons
asked whether there were other illegal items in the residence. She
advised that she had a gun clip and safe in her bedroom, the pink
room. She further advised Detective Simmons would find drugs
and guns in the safe.
Once Detective Simmons obtained a search warrant, he
returned to the residence where he was stopped by Officer
Thomas. Officer Thomas advised Detective Simmons that he met
with a female residen[t] of the apartment building, Freida
Montague, who stated that shortly after the shooting a dark-
skinned female wearing a bloody shirt knocked on her door and
asked to hold her pink purse. Ms. Montague hung the purse on
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the back of her door and did not open it. Ms. Brown testified that
she took an empty PCP vial from the TV stand in her bedroom, put
it in the purse, and took the purse to her neighbor. She denies
that it was her PCP, and only took it to her neighbor because she
was scared. After retrieving the purse from Ms. Montague,
investigator Lyda opened and photographed the inside of the
purse. A glass vial covered in blood with a black lid containing
suspected PCP was inside, as well as multiple mint leaves and
other personal items.
Execution of the search warrant revealed several items. In
the kitchen officers discovered multiple mint leaves in a large
Tupperware container in the kitchen sink. In Ms. Brown’s room,
also referred to as “the pink” room, were: (1) a large safe covered
with male clothing; (2) a plastic bin with multiple items of male
clothing in addition to a black .40 caliber Taurus handgun; (3)
small bag of suspected marijuana; (4) a pipe commonly used to
smoke marijuana; (5) several blue, oblong tablets; (6) a box of
plastic sandwich bags; (7) an empty glass jar with a blue lid; (8)
a white purse with an empty black glass vial, similar to others
found, with tobacco leaves throughout; and (9) a male wallet with
[Appellant’s] New Jersey identification card inside. The safe was
approximately three (3) feet high, weighed over one hundred
(100) pounds, and required at least two individuals to pick up and
move. Inside the safe were seven (7) individual glass jars with
black lids containing suspected PCP, $1,180 of United States
currency in various denominations, several batteries, and a sock.
Officers also located a .22 caliber magazine in an unoccupied
bedroom of the residence.
Trial Court Opinion, 11/2/17 (“TCO”), at 5-6 (references to notes of testimony
and footnotes omitted).1
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1 The omitted footnotes indicated that the handgun’s magazine was fully
loaded and there was a round in the chamber, ready for fire; that the
suspected marijuana and suspected PCP were subsequently tested and
confirmed to be marijuana and liquid PCP with approximately one ounce of
PCP per vial; and that a sock is a common way to transport individual jars of
PCP to avoid skin contact.
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Appellant was arrested and charged with PWID, conspiracy—PWID,
tampering with/fabricating physical evidence, and possession of drug
paraphernalia.2 Following a December 2016 trial, the jury convicted Appellant
of PWID, conspiracy, and possession of drug paraphernalia, but acquitted him
of tampering with evidence. The trial court sentenced Appellant to an
aggregate term of not less than fifty-seven nor more than one hundred
fourteen months of confinement in a state correctional institution, and five
years’ probation consecutive to the confinement. TCO at 1-2.
By order entered June 26, 2017, the trial court denied Appellant’s post-
sentence motions. This timely appeal followed. Both Appellant and the trial
court complied with Pa.R.A.P. 1925. Appellant now asks this Court to consider
the following issues on appeal:
A. Was the evidence sufficient to prove possession with intent to
deliver?
B. Was the evidence sufficient to prove criminal conspiracy to
commit possession with intent to deliver?
C. Did the court err when it admitted evidence of Appellant’s prior
drug sales as evidence under Pa.R.E. 404(b)?
D. Did the Assistant District Attorney commit prosecutorial
misconduct when it [sic] proceeded at trial on charges that
were withdrawn at the preliminary hearing?
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235 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, 18 Pa.C.S.A. § 4910(1), and
35 P.S. 780-113(a)(32), respectively. Additional charges of person not to
possess firearm and receiving stolen property were withdrawn by the
Commonwealth.
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Appellant’s Brief at 3.
Appellant’s first two issues challenge the sufficiency of evidence
supporting his convictions of PWID and conspiracy.3 This Court has explained:
Our standard and scope of review for sufficiency challenges are
well established.
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances. Additionally, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered.
Commonwealth v. Feliciano, 67 A.3d 19, 23-24 (Pa. Super. 2013) (en
banc) (citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
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3 Ms. Chambers and Ms. Brown were charged as co-conspirators with
Appellant.
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In accord with 35 P.S. §780-113(a)(30), a person not registered under
the Act is prohibited from the manufacture, delivery, or possession with intent
to manufacture or deliver, a controlled substance. Appellant contends that a
finding of PWID requires proof, beyond a reasonable doubt, that he
constructively possessed an illegal substance, i.e., that he had “1) the []
ability to exercise a conscious dominion over the illegal substance; 2) the []
power to control the illegal substance; and 3) the [] intent to exercise that
control.” Appellant’s Brief at 15 (quoting Commonwealth v. Johnson, 26
A.3d 1078, 1086 (Pa. 2011)). He argues that the evidence failed to establish
his constructive possession of the PCP found in Ms. Brown’s room.
The trial court dismissed Appellant’s constructive possession argument,
noting:
Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than not. We
have defined constructive possession as conscious dominion. We
subsequently defined conscious dominion as the power to control
the contraband and the intent to exercise that control. To aid
application, we have held that constructive possession may be
established by the totality of the circumstances.
TCO at 8 (quoting Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super.
2013) (citations omitted)). “Additionally, it is possible for two people to have
joint constructive possession of an item of contraband.” Hopkins, 67 A.3d at
820-21 (citation omitted).
Appellant suggests that the evidence cannot support a conviction for
PWID. In support of his contention, he makes reference to evidence presented
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at trial. Appellant’s Brief at 15-17. However, in doing so, he presents a view
of the evidence in a light most favorable to Appellant. Our standard of review
requires otherwise, mandating that we view the evidence and reasonable
inferences in the light most favorable to the Commonwealth as verdict winner.
The trial court explained:
When viewed in their totality, the facts and circumstances
support the finding that Appellant was in constructive possession
of the contraband. Seven (7) vials of PCP were found in the safe
located inside the closet in Ms. Brown’s bedroom. Detective
Simmons testified that there was a trail of blood leading to the
closet where the safe was found, and that the safe was covered
with male clothing. Ms. Brown testified she and Appellant were in
an intimate relationship, and that Appellant had stayed with her
in her bedroom on and off for approximately six (6) months.
While Ms. Brown did not observe Appellant place the safe
and bin of clothing in her room, she assumed that he did as it was
not there before he arrived to stay with her, and was in her
bedroom when she returned home later that night. She further
testified that except for the safe and bin of clothing, everything
else in the bedroom belonged to her. Ms. Brown did not have
access to items inside the safe, and did observe Appellant go in
and out of the safe on one occasion. Lastly, Detective Simmons
recovered a wallet with Appellant’s New Jersey identification card,
as well as other personal items, on the floor of Ms. Brown’s
bedroom. Accordingly, Appellant is not entitled to relief as the
Commonwealth proved beyond a reasonable doubt that Appellant
had possession of the contraband.
TCO at 8-9 (references to notes of testimony and footnote omitted).
We agree with the trial court’s assessment. Viewing the evidence and
all reasonable inferences in the light most favorable to the Commonwealth,
there was sufficient evidence for the jury to find Appellant had the ability to
exercise conscious dominion over the PCP, the power to control it, and the
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intent to exercise that control. Therefore, the evidence was sufficient to find
Appellant guilty of PWID beyond a reasonable doubt. Appellant’s first issue
fails.
Appellant next argues that the evidence was insufficient to support his
conspiracy conviction. Section 903 of the Crimes Code provides:
(a) Definition of conspiracy.—A person is guilty of conspiracy
with another person or persons to commit 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 them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
18 Pa.C.S.A. § 903.
In Feliciano, this Court reiterated:
“To sustain a conviction for criminal conspiracy, the
Commonwealth must establish the defendant: 1) entered into an
agreement to commit or aid in an unlawful act with another person
or persons; 2) with a shared criminal intent; and 3) an overt act
was done in furtherance of the conspiracy.” Commonwealth v.
Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). “The conduct of
the parties and the circumstances surrounding such conduct may
create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt.” Id. The conspiratorial
agreement “can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties,
knowledge of and participation in the crime, and the
circumstances and conduct of the parties surrounding the criminal
episode.” Id.-8-
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Feliciano, 67 A.3d at 25-26. As the Commonwealth suggests, agreements
of conspiracy are “generally established via circumstantial evidence such as
by ‘the relations, conduct, or circumstances of the parties or overt acts on the
part of co-conspirators’ because it is difficult to prove an explicit agreement.”
Commonwealth Brief at 11 (quoting Commonwealth v. Sanchez, 82 A.3d
943, 973 (Pa. 2013)).
The trial court concluded the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to sustain Appellant’s
conviction for conspiracy. As the court explained:
Ms. Brown permitted Appellant to move an extremely heavy
safe into her bedroom for the obvious purpose of storing
contraband. Ms. Brown admitted that she was aware that there
were drugs and money in the safe. Allowing the safe into the
residence qualifies as an overt act. In addition, Ms. Brown
retrieved the items from Appellant’s person when he was shot,
knowing that he possessed illegal items, and then took those
items, put them into her purse, and took the purse to a neighbor
in an effort to conceal the contraband. Likewise, Ms. Chambers
admitted to smoking PCP on the day of the incident, and admitted
that she obtained the PCP from Appellant. Therefore, Ms.
Chambers was likewise aware, or should have been aware, that
the safe brought into the residence by Appellant contained
contraband.
TCO at 10.
The trial court concluded that the Commonwealth established the
requisite elements of conspiracy, i.e., that Appellant entered into an
agreement to commit an unlawful act with another person, that they shared
criminal intent, and that an overt act was done in furtherance of the
conspiracy. Viewing the evidence in its totality and in the light most favorable
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to the Commonwealth as verdict winner, we agree that the evidence was
sufficient to sustain Appellant’s conspiracy conviction. Appellant’s second
issue fails.
In his third issue, Appellant contends the trial court erred in allowing
introduction of evidence that Appellant sold PCP to Ms. Chambers. As such,
Appellant is challenging an evidentiary ruling. In Commonwealth v. Page,
965 A.2d 1212 (Pa. Super. 2009), this Court explained:
Evidence relating to other crimes, wrongs, or acts of a defendant
is admissible to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident” if the
probative value outweighs the potential prejudice. Pa.R.E.
404(b)(2), (b)(3). When reviewing a claim concerning the
admission of evidence, and specifically evidence of a prior bad act
by a defendant, the appropriate standard was set forth in
Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, [550] (2002)
(internal citations omitted) (emphasis added), as follows:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision shall
be reversed only upon a showing that the trial court abused
its discretion. In determining whether evidence should be
admitted, the trial court must weigh the relevant and
probative value of the evidence against the prejudicial
impact of that evidence. Evidence is relevant if it logically
tends to establish a material fact in the case or tends to
support a reasonable inference regarding a material fact.
Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
Evidence of prior bad acts committed by a defendant is not
admissible solely to show the defendant’s bad character or
his propensity for committing bad acts. However, evidence
of prior bad acts is admissible where there is a legitimate
reason for the evidence, such as to establish: 1) motive; 2)
intent; 3) absence of mistake or accident; 4) a common
scheme or plan; and 5) identity. The evidence may also be
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admissible to impeach the credibility of a testifying
defendant; to show that the defendant has used the prior
bad acts to threaten the victim; and in situations where
the bad acts were part of a chain or sequence of
events that formed the history of the case and were
part of its natural development.
Id. at 1219 (emphasis added).
The trial court recounted that the prior bad acts issue was raised prior
to the start of trial and that the prosecutor’s intent was to “introduce
everything that [the witnesses] know about that particular day just to give a
flow of story for the jury, and so they understand exactly where these
witnesses are coming from and their personal knowledge and perspective, and
their relationship to [Appellant] as well.” Notes of Testimony, 12/5/16, at 9.
The Commonwealth agreed with the trial court’s characterization, “for lack of
a better term,” as “a res [gestae] connection between the earlier testimony
and the actual occurrence following the shooting.” Id. The court ruled that
the testimony would be limited to the purchase on the day before the incident,
because “[i]t’s clearly within the time frame. And they’ll be able to say that
they believe him to be a drug dealer.” Id. at 11-12.
Appellant’s counsel expressed concern about Ms. Chambers’ statement
that she heard Appellant carried a gun and that she knew him to carry a gun
years earlier. When the prosecutor explained her intent was to “stick to the
incident as much as possible,” Appellant’s counsel asked, “And what the court
just limited you?” The prosecutor replied, “Yes,” and Appellant’s counsel
stated, “Fair enough.” Id. at 11.
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The only testimony offered by Ms. Chambers about a purchase of PCP
from Appellant was in reference to the purchase made “earlier in the day,”
referring to the day of the shooting.4 Id. at 136-37. The trial court permitted
the Commonwealth
to introduce testimony of the drug sale which occurred the day
prior to the incident in question as it demonstrates the basis, if
not motive of the charged conspiracy. The testimony . . . tends
to prove that Ms. Chambers was aware that Appellant was a drug
dealer and that she and Ms. Brown allowed Appellant to move an
overly large, heavy safe into their residence knowing what was
inside of it. The sale was close in proximity to the incident,
therefore clearly provides probative value that outweighs any
unfair prejudice.
TCO at 12-13.
We agree that there was a legitimate basis for allowing the testimony.
Finding no abuse of discretion in the trial court’s ruling, we shall not disturb
it. Appellant’s third issue does not provide any basis for relief.
In his fourth and final issue, Appellant contends the Assistant District
Attorney committed prosecutorial misconduct by proceeding on a charge at
trial that Appellant thought had been withdrawn. Specifically, Appellant
asserts misconduct “in withdrawing the charge of tampering with/fabricating
evidence at the Magistrate District Court and later proceeding on the charge
in violation of Appellant’s due process rights; allowing the Commonwealth to
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4 The shooting actually occurred in the very early hours of the following
morning. While the sale to Ms. Chambers technically occurred the evening
before, the events surrounding the sale and the shooting were treated
generally by the parties as occurring on the same day.
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present evidence of a firearm although Appellant was not charged with
possession of a firearm.” Appellant’s Rule 1925(b) Statement, 10/17/17, at
2 (some capitalization omitted). However, in his brief, Appellant concedes
that the Commonwealth did not remove the charge from the information,
despite suggesting at the preliminary hearing that there was insufficient
evidence for the charge. Appellants’ Brief at 21.
The trial transcript reflects that the charges Appellant faced at trial
included “tampering with physical evidence.” Notes of Testimony, 12/5/16,
at 5. At the conclusion of trial, the court delivered its instructions and
informed the jury of the elements of each of the crimes charged, including
“tampering or fabricating physical evidence.” Id. at 327. At no time did
Appellant object based on a belief the charge had been dropped. We find, as
did the trial court, that Appellant’s final issue is “a combination of incorrect
and inaccurate facts.” TCO, at 13. Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/18
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