Com. v. Stanford, O.

J-S56036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ORRIN FRANCIS STANFORD,
Appellant No. 2216 MDA 2013
Appeal from the Judgment of Sentence October 10, 2013
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0001578-2012
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 29, 2014
Appellant, Orrin Francis Stanford, appeals from the judgment of
sentence imposed following his conviction by a jury of possession with intent
to deliver (PWID) (heroin), and criminal conspiracy to commit possession of
a controlled substance (heroin). Appellant challenges testimonial evidence
of prior bad acts, the sufficiency of the evidence, and the denial of a motion
to suppress. We affirm.
In the early morning hours of February 18, 2012, police assigned to
the Lancaster County Drug Task Force stopped the vehicle Appellant was
driving (a 1998 Nissan Altima registered in Delaware in the name of his
girlfriend/fiancée), in New Providence, PA. (See Trial Court Opinion,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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11/19/13, at 1). The day before, February 17, police had attached a global
positioning system (GPS) tracking device to the vehicle, pursuant to 18
Pa.C.S.A. § 5761, mobile tracking devices. Around 2 PM on the 17 th, the
police had also supervised and observed a controlled buy from Appellant. A
confidential informant purchased ten bags of heroin for $100 from him,
establishing probable cause for the search warrant.
After the stop, the police executed a search warrant on the vehicle, on
Appellant’s person, his brother Isaiha, and their companion, Timothy Myers.
The search uncovered 298 bags of heroin. Two hundred eighty-five were
hidden in a potato chip bag in the pant leg of Appellant’s younger brother,
Isaiha.1 The police also found eighteen grams of marijuana. Two hundred
twenty dollars was found on Appellant. Eighty dollars of the $220 found on
Appellant was pre-recorded currency used in the prior controlled buy in the
Nissan Altima by the confidential informant. (See. Trial Ct. Op., at 3 n.2).
The police arrested Appellant and the two passengers.
Appellant filed a motion to suppress, which the trial court denied. The
Commonwealth filed a motion to introduce evidence of probable cause
buys.2 On May 9, 2013, a jury convicted Appellant of possession with intent
to deliver heroin and criminal conspiracy to deliver heroin.3
____________________________________________
1
Thirteen bags of heroin were found on the other passenger, Myers.
2
At trial, the Commonwealth introduced evidence of only one controlled buy,
shortly before the stop. (See N.T. Trial, 5/08/13, at 5-6, 148-161;
(Footnote Continued Next Page)
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On October 10, 2013, the court imposed an aggregate sentence of two
and one-half to seven years’ incarceration, plus a $5,000 fine, with credit for
time served. (See N.T. Sentencing, 10/10/13, at 19-20; see also Trial Ct.
Op., at 4). The trial court denied Appellant’s post-sentence motion on
November 19, 2013, with an order and accompanying opinion. Appellant
timely appealed on December 9, 2013 (docketed April 12, 2013).4
On appeal, Appellant raises three questions for our review:
A. [Did the trial] court [err] in allowing testimony of
uncharged incidents of drug trafficking as prior bad acts during
the trial?
B. Whether the [trial] court erred in determining that the
evidence is legally insufficient [sic] to sustain the jury’s verdict?
C. [Whether the trial] court erred in denying [Appellant’s]
[m]otion to [s]uppress [e]vidence relating to the tracking device
placed on Appellant’s vehicle?
(Appellant’s Brief, at 4).5
_______________________
(Footnote Continued)
Commonwealth’s Brief, at 18 n.6). Nevertheless, Appellant maintains that
evidence of two drug transactions was admitted, and frames his argument in
the plural. (See Appellant’s Brief, at 8).
3
The jury acquitted Appellant of possession of marijuana.
4
Appellant timely filed a statement of errors on January 2, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) memorandum opinion
on January 6, 2014, referencing its Opinion and Order of November 19,
2013. (See Pa.R.A.P. 1925(a) Memorandum of Opinion, 1/06/14); see also
Pa.R.A.P. 1925(a).
5
We address Appellant’s second question as a challenge to the sufficiency of
the evidence despite the obvious typographical error.
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Appellant’s first issue challenges the trial court’s admission of evidence
of the confidential informant’s prior controlled buy. (See Appellant’s Brief,
at 8-10). Appellant maintains the evidence of another criminal act, for
which he was not being prosecuted, prejudiced him, and was not probative
of the issues involving the offenses for which he was being prosecuted. We
disagree.
When reviewing a claim concerning the admissibility of
evidence, and specifically evidence of other crimes or bad acts
by a defendant, we note:
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.
Commonwealth v. Reid, 571 Pa. 1, 34, 811 A.2d 530, 550
(2002) (citations 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.
Commonwealth v. Carroll, 936 A.2d 1148, 1152–53 (Pa.
Super. 2007), appeal denied, 596 Pa. 752, 947 A.2d 735 (2008).
Further, “[a]n abuse of discretion may result where the trial
court improperly weighed the probative value of evidence
admitted against its potential for prejudicing the defendant.”
Commonwealth v. Viera, 442 Pa. Super. 348, 659 A.2d 1024,
1028, (1995) (citing Commonwealth v. Wharton, 530 Pa.
127, 144–46, 607 A.2d 710, 719 (1992)). When a trial court
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indicates its reason for its ruling, “our scope of review is limited
to an examination of that stated reason.” Commonwealth v.
Strong, 825 A.2d 658, 665 (Pa. Super. 2003).
Jurisprudence regarding the admission of other crimes and
bad acts is as follows:
Evidence of distinct crimes is not admissible against
a defendant being prosecuted for another crime solely to
show his bad character and his propensity for committing
criminal acts [See Pa.R.E. 404(b)(1)]. However, evidence
of other crimes and/or violent acts may be admissible in
special circumstances where the evidence is relevant for
some other legitimate purpose and not merely to prejudice
the defendant by showing him to be a person of bad
character.
Commonwealth v. Horvath, 781 A.2d 1243, 1245 (Pa. Super.
2001). These other purposes include, inter alia, proving the
identity of the person charged with the commission of the crime
on trial. Commonwealth v. O'Brien, 836 A.2d 966, 969 (Pa.
Super. 2003).
Commonwealth v. Weakley, 972 A.2d 1182, 1188-89 (Pa. Super. 2009),
appeal denied sub nom. Commonwealth v. Selenski, 986 A.2d 150 (Pa.
2009) (emphasis in original). Pennsylvania Rule of Evidence 404(b)
provides:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
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(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence the
prosecutor intends to introduce at trial.
Pa.R.E. 404(b).
Here, on review, we conclude that the trial court did not abuse its
discretion by admitting evidence of Appellant’s participation in a prior
controlled buy with a confidential informant. The trial court reasons that
evidence of the prior drug sale was properly admitted to refute Appellant’s
claim that he was an unknowing participant in the drug conspiracy, merely
present in the vehicle, with no knowledge of the presence of controlled
substances in the car he was driving, or of the intent of his passengers to
distribute the drugs. (See Trial Ct. Op., at 24).
The trial court’s reasoning is supported by the trial transcript. For
example, in his closing argument, defense counsel told the jury, in pertinent
part:
Now, again, constructive possession in this case.
[Appellant] would have to have known that the drugs were
there. Look at that disposition when he pulled over the vehicle.
Look at his statement. I had no knowledge that the drugs were
in that car.
They want to use every other statement, but they don’t
like to use that statement. I didn’t know about the drugs. And
he couldn’t have exercised dominion and control over the drugs.
(N.T. Trial, 5/09/13, at 282).
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We conclude the trial court properly admitted evidence of Appellant’s
prior drug transaction to refute his claim of ignorance about the drugs in his
car, or the co-conspirators’ intent to sell them. The trial court did not abuse
its discretion.
We confine our review to the reasoning provided by the trial court.
When a court indicates its reason for its ruling, our scope of review is limited
to an examination of that stated reason. See Weakley, supra at 1189,
citing Strong, supra at 665. Appellant’s first claim does not merit relief.
In his second issue, Appellant challenges the sufficiency of the
evidence. He does not argue that the Commonwealth failed to prove all the
elements of the offenses for which he was convicted. Rather, Appellant
disputes the finding of constructive possession of the heroin found on the
passengers in the car, and argues that there was no evidence of his
participation in a criminal conspiracy. (See Appellant’s Brief, at 11-13). We
disagree.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
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by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Brooks, 7 A.3d 852, 856–57 (Pa. Super.
2010) (citations omitted).
To sustain a conviction for PWID, “the Commonwealth
must prove both the possession of the controlled substance and
the intent to deliver the controlled substance.” Commonwealth
v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (citations
omitted). If the contraband is not found on the appellant’s
person, the Commonwealth must prove that the appellant had
constructive possession of the contraband, which has been
defined as the “ability and intent to exercise control over the
substance.” Commonwealth v. Hutchinson, 947 A.2d 800,
806 (Pa. Super. 2008) (citations omitted). The Commonwealth
may establish constructive possession through the totality of the
circumstances. Commonwealth v. Muniz, 5 A.3d 345, 349
(Pa. Super. 2010) (citing Commonwealth v. Thompson, 779
A.2d 1195, 1199 (Pa. Super. 2001)).
* * *
[T]his Court has found that multiple individuals may have
joint control and equal access and thus both may constructively
possess the contraband. Commonwealth v. Sanes, 955 A.2d
369, 373 (Pa. Super. 2008) (citations omitted).
Commonwealth v. Estepp, 17 A.3d 939, 943-45 (Pa. Super. 2011), appeal
dismissed as improvidently granted, 54 A.3d 22 (Pa. 2012).
Here, Appellant concedes that the Commonwealth can prove
possession of a controlled substance by circumstantial evidence. (See
Appellant’s Brief, at 11). Furthermore, Appellant does not dispute that an
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intent to maintain conscious dominion may be inferred from the totality of
the circumstances. (See id. at 12).
Nevertheless, he maintains that he could not be found in constructive
possession of heroin not on his person or in a common area of the vehicle,
specifically, heroin in the “the pant’s [sic] of another person.” (Id. at 13).
Appellant cites no authority for this assertion, and misapprehends controlling
case law. See Estepp, supra at 945 (“[M]ultiple individuals may have joint
control and equal access and thus both may constructively possess the
contraband.”) (citation omitted).
At trial, Lancaster County Drug Task Force Detective Gregory P.
Macey, accepted by the court without objection as an expert, testified that
drug traffickers frequently trusted younger co-conspirators, including family
members, who often had no criminal records or lesser criminal records than
their seniors, to hold illicit drugs. (See N.T. Trial, 5/09/13, at 234, 241-42).
The jury as fact-finder was free to accept this testimony as evidence and
infer that Isaiha Stanford’s holding of most of the heroin was at the direction
and control of his older brother, Appellant. Appellant’s issue does not merit
relief.
Appellant also challenges the evidence of conspiracy.
To prove criminal conspiracy, the Commonwealth must
show a defendant entered into an agreement to commit or aid in
an unlawful act with another person; that he and that person
acted with a shared criminal intent; and that an overt act was
taken in furtherance of the conspiracy. 18 Pa.C.S.A. § 903. “An
explicit or formal agreement to commit crimes can seldom, if
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ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities. Therefore, where the
conduct of the parties indicates that they were acting in concert
with a corrupt purpose in view, the existence of a criminal
conspiracy may properly be inferred. This court has held that
the presence of the following non-exclusive list of circumstances
when considered together and in the context of the crime may
establish proof of a conspiracy: (1) an association between
alleged conspirators, (2) knowledge of the commission of the
crime, (3) presence at the scene of the crime, and (4)
participation in the object of the conspiracy.
Again, the totality of the circumstances taken in the light
most favorable to the Commonwealth is sufficient to convict
appellant of . . . conspiracy. . . . We have held that an overt act
need not be committed by the defendant; it need only be
committed by a co-conspirator.
Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (case
citations and internal quotation marks omitted).
Furthermore, in reviewing sufficiency, we evaluate the entire record
and all evidence actually received must be considered. See Estepp, supra
at 944-45; see also Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.
Super. 2014) (quoting Commonwealth v. Slocum, 86 A.3d 272, 275–76
(Pa. Super. 2014).
Accordingly, to evaluate the sufficiency of the evidence for Appellant’s
conviction of conspiracy, we would properly consider the evidence of his
sale of heroin in the controlled buy even if, contrary to fact, it was otherwise
inadmissible. In the totality of circumstances, there was ample proof of
Appellant’s knowing participation in the heroin selling enterprise, and his
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constructive possession of the heroin. Appellant’s second issue does not
merit relief.
Finally, in his third issue, Appellant maintains that the trial court erred
in denying his motion to suppress evidence related to the GPS tracking
device. (See Appellant’s Brief, at 14-17). Appellant argues that compliance
with 18 Pa.C.S.A. § 5761, mobile tracking devices, is legally insufficient.
(See id. at 15). Citing United States v. Jones, 132 S. Ct. 945, 949 (2012)
(“We hold that the Government’s installation of a GPS device on a target’s
vehicle, and its use of that device to monitor the vehicle’s movements,
constitutes a “search.”), he contends that the Commonwealth required a
search warrant to install the GPS tracker. (See id.). We disagree.
This Court has already decided that even after Jones, a GPS device
placed onto a vehicle in full compliance with 18 Pa.C.S.A. § 5761, mobile
tracking devices, as amended, does not offend the Fourth Amendment of the
United States Constitution or Article 1, Section 8 of the Pennsylvania
Constitution. See Commonwealth v. Burgos, 64 A.3d 641, 655 n.20 (Pa.
Super. 2013), appeal denied, 77 A.3d 635 (Pa. 2013). Appellant’s third
issue does not merit relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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