Com. v. Vargas, J.

J-A10023-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE VARGAS,
Appellant No. 1461 EDA 2012
Appeal from the Judgment of Sentence of January 5, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1300045-2006
BEFORE: STEVENS, P.J., OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 27, 2015
Appellant, Jose Vargas, appeals from the judgment of sentence
entered on January 5, 2012, following his jury trial conviction for possessing
a controlled substance with the intent to deliver (PWID), 35 P.S. § 780–
113(a)(30). This case is before this Court following a remand from the
Pennsylvania Supreme Court. On July 3, 2013, relying upon our en banc
decision in Commonwealth v. Castro, 55 A.3d 1242 (Pa. Super. 2012) (en
banc), we granted Appellant’s request to vacate his judgment of sentence
and remanded for additional proceedings based upon after-discovered
evidence. Subsequently, on June 16, 2014, the Pennsylvania Supreme
Court held that a newspaper article containing allegations of corruption
against an investigating officer does not constitute new evidence. See
Commonwealth v. Castro, 93 A.3d 818 (Pa. 2013). Thus, on September
* Retired Senior Judge assigned to the Superior Court.
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24, 2014, the Supreme Court entered an order vacating our decision to
grant relief on Appellant’s after-discovered evidence claim and remanded
this matter for further proceedings. Thus, we will proceed to address the
substantive merits of Appellant’s original appellate claims.
First, we summarize the facts and procedural history of this case as
follows. Officer Thomas Liciardello, the assigned officer in the narcotics
investigation, received information from a confidential informant that a man
named “Goldo,” a heavyset Hispanic male, was selling heroin from a bar in
Philadelphia called La Tierra Caribe,1 located at Lee and Tiago Streets. The
informant further told police that Goldo would be delivering a large amount
of heroin on March 21, 2006 in the Huntington Park area of Philadelphia in a
black Ford Explorer SUV.
On March 21, 2006, Officer Liciardello set up surveillance, in an
unmarked police car, at the corner of J Street and Huntington Park Avenue,
near a Pep Boys automotive center. Officer Liciardello saw Goldo, later
identified as Emilio Gonzales, drive an SUV into the Pep Boys parking lot at
the arranged time; Appellant was a passenger. Officer Liciardello saw
Appellant get out of the SUV, approach a white PT Cruiser, have a
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1
Upon review of the record, the bar is referred to as both “La Tierra Caribe”
and “La Crib Bar.” See N.T., 11/13/2007, at 15. We adopt the trial court’s
spelling throughout this memorandum.
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conversation with an unknown Hispanic male, and get back into the SUV,
which drove away.
Officer Liciardello also assigned Officer Barrington Clahar to conduct
surveillance at La Tierra Caribe. After leaving the Pep Boys, Officer Clahar
saw the SUV pull up in front of La Tierra Caribe and watched Appellant go
inside. Appellant came out with another male. Both men went across the
street. The other male went into the store and when he emerged, he
handed something to Appellant. Appellant got into the SUV and Goldo drove
away. Officer Clahar relayed this information to Officer Liciardello.
Officer Liciardello followed the SUV. Officer Liciardello observed
Appellant reach into the backseat behind the driver. Officer Liciardello
radioed for Officer John Coats, who was driving a marked police cruiser, to
conduct a traffic stop of the SUV. Police removed Goldo and Appellant from
the area. Police summoned a drug-detecting canine to the scene. The dog
alerted police to all four doors of the vehicle, as well as the trunk. Officer
Liciardello obtained a search warrant for the SUV and La Tierra Caribe.
When Officer Robert Billips executed the search warrant for the SUV,
he uncovered 69.26 grams2 of heroin under the cushion of a child seat,
located in the backseat on the driver’s side. Police arrested Appellant
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2
At trial, Officer George Burgess testified that the heroin recovered has a
street value of between $23,000.00 and $24,000.00.
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following the recovery of narcotics. In a search incident to his arrest, police
found $300.00 on Appellant’s person.
Police executed the search warrant for La Tierra Caribe. On the
second floor, police observed a man named Pedro Rondon run through, and
lock, a door that connected to the residential property next door. Officer
Liciardello forced open the door and pursued Rondon. Officer Liciardello
secured the area and saw what was described as a grinder for narcotics on a
bed where Rondon was sitting. Police obtained a search warrant for the
residence and later uncovered, among other things, bulk heroin, drug
paraphernalia, and a photograph of Appellant.
On November 1, 2010, a jury trial commenced. On November 5,
2010, the trial court declared a mistrial because the jury could not reach a
unanimous decision. On September 23, 2011, a second jury trial ensued.
On September 27, 2011, a jury convicted Appellant of PWID, in relation to
the heroin recovered from the SUV. On January 5, 2012, the trial court
sentenced Appellant to four to 10 years of imprisonment, followed by six
years of probation. This timely appeal followed.3
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3
Appellant filed a post-sentence motion on January 13, 2012. The motion
was denied by operation of law on May 15, 2012. Appellant filed a notice of
appeal on May 17, 2012. On May 29, 2012, the trial court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied timely on June 14, 2012. On July 23,
2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). On
March 26, 2013, after the conclusion of the appellate briefing schedule in
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues for our review:
1. Whether the warrantless arrest of [Appellant] was illegal
and required suppression of all evidence confiscated after
his illegal arrest, and whether police improperly detained
[Appellant], which required the suppression of any
evidence seized after his detention?
2. Did the Commonwealth establish facts that would allow
the fact-finder to decide whether [Appellant]
constructively possessed the heroin found in the [SUV] in
which he was a passenger?
3. Was the presentation of testimony relating to a picture of
[Appellant] found near contraband in the building at 121
Tioga Street unduly prejudicial when the photograph was
not itself presented into evidence and [Appellant] had no
connection to the residence where the photograph was
located?
Appellant’s Brief at 5.4
In his first issue presented, Appellant argues that the trial court erred
by failing to grant suppression of the evidence obtained. Id. at 10. His
challenge is two-fold.5 First, Appellant argues that the police lacked
reasonable suspicion that he was engaged in criminal activity to conduct an
_______________________
(Footnote Continued)
this matter, Appellant filed a motion to remand pursuant to Pa.R.Crim.P.
720, requesting a new trial or an evidentiary hearing on after-discovered
evidence. As previously stated, we granted relief, but the Supreme Court
vacated our decision based upon its subsequent decision in Castro and
remanded the matter.
4
We have reordered Appellant’s issues as presented to correspond with the
argument section of his brief.
5
For ease of discussion, we have inverted the two parts of Appellant’s
challenge.
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investigatory detention. Id. at 16-18. Appellant contends that the police
lacked reasonable suspicion that criminal activity was taking place based
solely upon “very limited information from a confidential informant that was
not reliable on his own” and “the other actions [police] observed could not
lead a person to believe that [Appellant] was doing anything criminal at the
time the traffic stop was made.” Id. at 16-17. Appellant argues that the
confidential informant was unreliable because: (1) any tips given to police
by the same informant, but after the incident herein, were irrelevant; (2) the
informant provided no information that resulted in prior convictions; and, (3)
the investigating officer in this case gave non-specific and vague answers
regarding past dealings with the confidential informant. Id. at 13-14.
Our standard of review is as follows:
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining
whether the suppression court's factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings
and may reverse only if the court's legal conclusions are
erroneous. Where, as here, the appeal of the determination
of the suppression court turns on allegations of legal error,
the suppression court's legal conclusions are not binding on
an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject
to our [de novo] review.
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Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa. Super. 2012)
(citation omitted).
The Fourth Amendment of the Federal Constitution provides, “[t]he
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated....” U.S. Const. Amend. IV. Likewise, Article I, Section 8 of the
Pennsylvania Constitution states, “[t]he people shall be secure in their
persons, houses, papers and possessions from unreasonable searches and
seizures....” Pa. Const. Art. I, § 8. Under Pennsylvania law, there are three
levels of encounter that aid courts in conducting search and seizure
analyses:
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or
respond. The second, an “investigative detention” must be
supported by reasonable suspicion; it subjects a suspect to
a stop and period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent
of arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. Carter, 2014 Pa. Super. 265, at *3.
Further, we have previously determined:
The Fourth Amendment permits brief investigative stops ...
when a law enforcement officer has a particularized and
objective basis for suspecting the particular person stopped
of criminal activity. It is axiomatic that to establish
reasonable suspicion, an officer must be able to articulate
something more than an inchoate and unparticularized
suspicion or hunch. Unlike the other amendments pertaining
to criminal proceedings, the Fourth Amendment is unique as
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it has standards built into its text, i.e., reasonableness and
probable cause. However, as the Supreme Court has long
recognized, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868
(1968) is an exception to the textual standard of probable
cause. A suppression court is required to take into account
the totality of the circumstances-the whole picture. When
conducting a Terry analysis, it is incumbent on the
suppression court to inquire, based on all of the
circumstances known to the officer ex ante, whether an
objective basis for the seizure was present.
Id. (most internal citations and all quotations and brackets omitted).
Additionally,
[t]he determination of whether an officer had reasonable
suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances. In
assessing the totality of the circumstances, a court must
give weight to the inferences that a police officer may draw
through training and experience. Also, the totality of the
circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal
conduct. Rather, even a combination of innocent facts,
when taken together, may warrant further investigation by
the police officer. […] [R]easonable suspicion does not
require that the activity in question must be unquestionably
criminal before an officer may investigate further. Rather,
the test is what it purports to be—it requires a suspicion of
criminal conduct that is reasonable based upon the facts of
the matter.
Id. at 1000 (2014) (citations and quotations omitted)(emphasis in original).
In this case, the trial court “found that [Appellant’s] behavior at the
bar at 119 East Tioga Street and at the store at 118 East Tioga Street was
consistent with information obtained from a confidential informant that
heroin was stored at these locations and was being transported inside the
Ford Explorer in which [Appellant] was the passenger.” Trial Court Opinion,
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7/23/2012, at 9. Thus, the trial court concluded, “the police had sufficient
reason to stop the vehicle and obtain a search warrant.” Id. Based upon
our standard of review and the totality of the evidence presented, we agree.
At the suppression hearing, the Commonwealth presented the
testimony of Officer Thomas Liciardello. He testified that he set up
surveillance in a Pep Boys parking lot at J. and Hunting Park based upon
“information from a reliable confidential informant.” N.T., 11/13/2007, at
13. The confidential informant had previously given Officer Liciardello
information leading to prior arrests and “large confiscations of primarily
heroin.” Id. at 14. The confidential informant stated that a Hispanic male,
“that goes by the name Goldo” “was going to be delivering a hundred grams
of heroin” on the day in question and “that Goldo operates out of a bar
located on the Northeast corner of Lee and Tioga” Streets. Id. at 15. The
confidential informant was with Officer Liciardello at the time of surveillance
and positively identified Appellant and Goldo. Id. at 18. Officer Liciardello
witnessed Appellant as he “exited the Ford Explorer, walked over to a
Hispanic male who was in a white PT Cruiser. They had a conversation, at
which time [Appellant] entered back into the Ford Explorer, and was
followed [by police] to the area of Lee and Tioga, at which time backup
officers were conducting surveillances in that area.” Id. at 13.
The Commonwealth also presented the testimony of Officer Barry
Clahar. Officer Clahar testified that he observed Appellant get out of the
Ford Explorer and enter the bar at 119 East Tioga Street where he remained
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for “five or ten minutes.” Id. at 46. Appellant “exited the bar in the
company of a Hispanic male wearing a striped shirt.” Id. The two men
crossed the street, the Hispanic male went into a store, and five minutes
later reemerged and “handed [Appellant] something.” Id. at 47. Officer
Clahar testified that it was a hand to hand passing of small item, but he
could not determine what it was. Id. at 50. “[B]oth males went back into
the bar.” Id. at 47. Officer Clahar testified that “[a]bout five or ten minutes
later” he observed Appellant leave the bar, enter the Ford Explorer, and
drive away. Id.
Officer Liciardello continued the investigation at this point. He stated:
Information was relayed to me by Police Officer
[Clahar] to follow the Ford Explorer.
While following it up B [S]treet, I observed [Appellant],
at which time he reached behind the driver side of the
vehicle, appeared to be placing something behind the driver
side seat area. At which time, I relayed information to
uniform[ed] officers to stop the vehicle. The vehicle was
stopped. The males were secured and [a] K-9 [unit] was
notified. [….] The dog had a positive reaction to all four
doors and the trunk area of that vehicle.
Id. at 16-17. Accordingly, Officer Liciardello obtained a search warrant for
the Ford Explorer. Id. at 17. The parties stipulated to Officer Liciardello’s
“expertise and experience in the field of narcotics.” Id. at 51.
Based upon the totality of the foregoing circumstances, we agree with
the trial court that police had reasonable suspicion that criminal activity was
afoot to detain Appellant for investigation. Police had information from a
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confidential informant, who had provided reliable information in the past,
that heroin sales were being conducted at La Tierra Caribe and transported
in a black Ford Explorer. Moreover, the confidential informant positively
identified Appellant at the time of surveillance. Appellant was seen entering
and exiting both the bar and the vehicle. At various points, Appellant
engaged in a conversation through an open car window and was seen
handing a small item to another man. The police observed Appellant
reaching behind the driver, described by police as placing an item in the rear
seat area. Thus, police were able to corroborate the information provided by
the confidential informant based upon their own observations. While certain
facts may appear to be innocent, in totality there was reasonable suspicion
to conclude that Appellant was engaged in narcotic sales to justify a traffic
stop for an investigatory detention.
Moreover, this Court has previously determined:
A defendant moving to suppress evidence has the
preliminary burden of establishing standing and a legitimate
expectation of privacy. Standing requires a defendant to
demonstrate one of the following: (1) his presence on the
premises at the time of the search and seizure; (2) a
possessory interest in the evidence improperly seized; (3)
that the offense charged includes as an essential element
the element of possession; or (4) a proprietary or
possessory interest in the searched premises. A defendant
must separately establish a legitimate expectation of
privacy in the area searched or thing seized. Whether a
defendant has a legitimate expectation of privacy is a
component of the merits analysis of the suppression motion.
The determination whether a defendant has met this burden
is made upon evaluation of the evidence presented by the
Commonwealth and the defendant.
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Generally, under Pennsylvania law, a defendant charged
with a possessory offense has automatic standing to
challenge a search. However, in order to prevail, the
defendant, as a preliminary matter, must show that he had
a privacy interest in the area searched.
An expectation of privacy is present when the individual, by
his conduct, exhibits an actual (subjective) expectation of
privacy and that the subjective expectation is one that
society is prepared to recognize as reasonable. The
constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all the surrounding circumstances.
In [Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.
Super. 2009) (en banc)], the car that the defendant had
been driving, and which was later searched by the police,
was neither owned by the defendant nor registered in his
name. Because the defendant did not present any evidence
at the suppression hearing that he was using the vehicle
with the authorization or permission of the registered
owner, or otherwise explain his connection to the vehicle or
its owner, this Court held that the defendant failed to
demonstrate that he had a reasonably cognizable
expectation of privacy in the vehicle.
Commonwealth v. Powell, 994 A.2d 1096, 1104 (Pa. Super. 2010)
(internal citations, quotations, and original brackets omitted).
Here, Appellant was charged with a possessory offense and has
automatic standing to challenge the search. However, the Commonwealth
presented evidence that the vehicle in question was registered to a person
named Casimiro Mejia. N.T., 9/23/2011, at 36. There was “no owner or
leasing information tying that car to [Appellant.]” Id. at 48. Moreover,
Appellant concedes that he did not own the vehicle. Appellant’s Brief at 19.
There was only one other person in the vehicle at the time of the police stop,
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the driver, Emilio Gonzalez. N.T., 9/23/2011, at 48. Appellant did not
present any evidence that he was using the vehicle with the authorization or
permission of the registered owner nor did he otherwise demonstrate his
connection to the vehicle or its owner. Since he has not established an
expectation of privacy in the vehicle, Appellant could not prevail on his
suppression motion for this additional reason. Thus, we find the trial court
did not err in failing to grant suppression.6
In the second part of Appellant’s challenge to the trial court’s denial of
suppression, Appellant contends he “was placed under arrest before any
warrants were issued and without probable cause.” Appellant’s Brief, at 11.
More specifically, Appellant claims that after the police pulled over the
vehicle in which Appellant was riding, but “before the canine unit arrived to
inspect the interior of the vehicle[,]” he was arrested. Id. at 11. He claims
police took him into custody without “his consent, they handcuffed him,
transported him to the police station, and claimed that they did this for his
safety and to continue their investigation” despite the fact that “exigent
circumstances” were lacking. Id. at 12. In the alternative, while Appellant
concedes that “police were observing [Appellant’s] actions on the day of his
arrest[,]” he argues “the Commonwealth was not able to establish grounds
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6
“We note that this court may affirm the decision of the trial court if there is
any basis on the record to support the trial court's action; this is so even if
we rely on a different basis in our decision to affirm.” Commonwealth v.
O'Drain, 829 A.2d 316, 322 (Pa. Super. 2003).
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for a finding of probable cause by introducing evidence of what was
observed prior to [Appellant’s] arrest.” Id. at 14. As previously mentioned,
Appellant argues that the confidential informant was unreliable. Id. at 13-
14. He claims the testifying officer observed “only one exchange of an
unknown item or items without any money changing hands” and “did not
comment on whether he felt it was suspicious.” Id. at 15. Appellant claims
that evidence, found after the various search warrants were executed on
Tioga Street, was uncovered after his arrest and not subject to the probable
cause analysis. Id. at 16.
Upon review of the record, we reject Appellant’s claim that he was
arrested without probable cause. In Commonwealth v. Johnston, 530
A.2d 74 (Pa. 1987), our Supreme Court held that use of a trained dog to
sniff for the presence of drugs was, under Article 1, Section 8 of the
Pennsylvania Constitution, a search. “The rules set down in Johnston were
that in order for police to conduct a canine search of a place, they must be
able to articulate reasonable grounds for believing that drugs may be
present in the place they seek to test; and they must be lawfully present in
the place where the canine sniff is conducted.” Commonwealth v. Martin,
626 A.2d 556, 559 (Pa. 1993). In this case, we have determined that police
had reasonable suspicion to believe that narcotics would be found in the
Ford Explorer SUV. Further, they were at a lawful vantage point outside of
the vehicle when it was conducted. Once a canine unit detects narcotics,
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reasonable suspicion ripens into probable cause. Commonwealth v.
Rogers, 849 A.2d 1185, 1192 (Pa. 2004).
Appellant’s detention while police waited for the canine unit was legal.
In Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995), our Supreme Court
was called upon to decide a similar issue. Therein, police stopped Ellis in a
vehicle in which he was riding upon suspicion that he had been involved in a
burglary. He was detained so that another officer could arrive to compare
footprints found at the scene of the crime with Ellis’ shoe and for an
eyewitness to make an identification. Relying upon the United States
Supreme Court decision in United States v. Sharpe, 470 U.S. 675, (1985),
the Ellis Court determined that a key factor to be examined is whether “the
police diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary to
detain the defendant.” Ellis, 662 A.2d at 1048.
Moreover, our Supreme Court has determined “that safety and
security concerns may justify moving a suspect during an investigative
detention.” Commonwealth v. Revere, 888 A.2d 694, 703 (Pa. 2005),
citing Florida v. Royer, 460 U.S. 491, 499, (1983) (plurality opinion)
(“there are undoubtedly reasons of safety and security that would justify
moving a suspect from one location to another during an investigatory
detention”).
At the suppression hearing, Officer Liciardello testified that the canine
unit was employed within an hour of the traffic stop. N.T., 11/13/2007, at
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43. Appellant was handcuffed and transported to the 25 th District police
station. Id. at 42. Officer Liciardello testified that he removed Appellant
from the scene for Appellant’s safety and police safety, because: (1) it was
a high traffic area, and; (2) the Tioga properties under investigation were
nearby and Officer Liciardello was concerned that someone might see the
detention and jeopardize the rest of the investigation. Id. at 43. Under the
foregoing circumstances, we find Appellant’s detention proper and
suppression was unwarranted.
In his second issue presented, Appellant argues that the
Commonwealth failed to present sufficient evidence that he constructively
possessed the narcotics recovered from the vehicle. Appellant’s Brief at 18.
In sum, he maintains:
Here, the record during trial is devoid of proof
concerning [Appellant’s] constructive possession of the
heroin found in the car seat of the Ford Explorer.
[Appellant] did not own the vehicle, there was no testimony
concerning who owned the child car seat in the back seat,
and he was only a passenger in the car. The heroin was
found in the rear seat in between the base and a cushion of
a child’s car seat. This was an accessible area to the driver
of the vehicle, who spent more time in the vehicle than
[Appellant] during the events observed by police. Gonzalez,
the driver, did not leave the Ford Explorer throughout the
entire sequence of events prior to the arrest. He had access
to the car seat and the entire interior of the vehicle. The
only evidence that [Appellant] had dominion or exercised
control over the heroin was one movement consisting of
turning around, which Officer Liciardello observed. The
officer could not see what [Appellant] was doing, and this
one point in time does not erase the fact that Gonzales had
equal access throughout. Just [] because another individual
had many opportunities to place the heroin in the area
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searched and because the area was easily accessible to
another, constructive possession has not been established.
Id. at 19. Finally, Appellant suggests “[p]olice could have easily
fingerprinted the package of heroin, but did not.” Id.
When reviewing challenges to the sufficiency of the evidence, our
standard of review is as follows:
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 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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations and brackets omitted). “Further, in viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, the court
must give the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.” Id. (citation omitted).
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As Appellant was not in physical possession of the contraband, the
Commonwealth was required to establish that he had constructive
possession of the seized items to support his convictions:
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. 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.
Additionally, it is possible for two people to have joint
constructive possession of an item of contraband.
Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (citations
omitted).
In this case, viewing the totality of the circumstances, the trial court
determined the Commonwealth established Appellant’s constructive
possession, based upon the following facts:
[Appellant’s] conduct in the PEP Boys parking lot which
[Officer] Liciardello, based upon his training and knowledge
of the community, concluded was consistent with drug
trafficking; [Officer] Clahar’s information based upon his
observations when the Ford Explorer arrived at the location
of his surveillance, and [Officer] Liciardello’s observation of
[Appellant] reaching into the backseat of the vehicle.
Further, when arrested and searched, [Appellant] was found
to have $300[.00] in cash on his person.
Trial Court Opinion, 7/23/2012, at 9.
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Upon review of the record, we agree. Initially, we summarily reject
Appellant’s contention that the owner and/or driver of the car had more
accessibility to the narcotics and Appellant was a mere passenger. Two
people may have joint constructive possession of contraband. See Kinard.
“Constructive possession is an inference arising from a set of facts that
possession of the contraband was more likely than not.” Id. Here, police
engaged in narcotics surveillance and confirmed Appellant’s activities as
consistent with narcotic sales. Police ultimately recovered heroin from the
back seat of the Ford Explorer, under a car seat, in the same vicinity where
police saw Appellant reaching earlier. N.T., 10/23/2011, at 69-70. Police
recovered $300.00, in smaller denominations, from Appellant’s person in a
search incident to his arrest. Id. at 36-37. All taken together, these facts
demonstrate that Appellant exercised conscious dominion, and the intent to
exercise that control, over the heroin. Accordingly, Appellant’s second issue
is without merit.
In his last issue presented, Appellant argues that the trial court erred
by admitting, at trial, testimony regarding a photograph of Appellant
recovered from 121 Tioga Street. Appellant’s Brief at 20. Before we
examine Appellant’s claim, some factual background is necessary. As
previously stated, upon execution of a search warrant at 121 Tioga Street,
police recovered a personal photograph of Appellant pictured with another
male and a female. On November 2, 2010, the photograph was admitted
into evidence at Appellant’s first trial, which ended with a hung jury and a
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mistrial. See N.T., 11/2/2010, at 81. On September 23, 2011, prior to the
beginning of Appellant’s current trial, defense counsel presented an oral
motion in limine “to exclude alleged observations” of Appellant in relation to
the properties subjected to the police searches. N.T., 9/23/2011, at 5.
Defense counsel argued that Appellant “was not observed inside the
property that drugs were found” and that Appellant had an attenuated
connection with 121 Tioga Street. Id. at 5. The Commonwealth argued
“that the jury should be allowed to consider the investigation as a whole, not
just the car stop in a vacuum to understand that [Appellant] was involved in
the delivery of narcotics.” Id. at 6. The trial court denied Appellant relief.
Id. at 7.
At trial, the Commonwealth presented Officer Liciardello with a
property receipt of the items recovered from 121 Tioga Street and began
questioning him about it. Id. at 39-40. On cross-examination, Officer
Liciardello conceded that the only evidence linking Appellant to the property
was the photograph police recovered. Id. at 57. At this point, Officer
Liciardello testified that he was the evidence custodian and the photograph
had gone missing. Id. Defense counsel proceeded to question Officer
Liciardello about the photograph. Id. at 58-59. When Officer Liciardello
could not recall details of the photograph, defense counsel refreshed his
recollection with testimony from the trial transcripts from Appellant’s first
trial. Id. at 60-61. After Officer Liciardello was excused, defense counsel
requested a mistrial at sidebar because the evidence was missing. Id. at
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74. In the alternative, defense counsel requested a curative instruction. Id.
The trial court denied relief. Id. at 75. At a sidebar, after the
Commonwealth rested, defense counsel stated:
That brings me to another objection that I must restate,
and I know the [c]ourt overruled it. I objected and asked
for a mistrial and, in the alternate, a curative instruction
requesting the jury to disregard any testimony regarding
this photograph. The reason for that is that it has been
testified about as physical evidence and yet it [has not]
appeared. The only thing that matters is that it’s not here.
I would base my objection on the Best Evidence Rule.
This jury is entitle[d] to review the photograph and
determine for themselves whether or not [Appellant] even
appears in the photograph. We know the Commonwealth
will use that photograph to link him to these other activities
and other properties.
It matters not one bit whether this photograph was
present in the courtroom before because this jury was not
present in the courtroom before. This is a jury asked to
make a decision now. That decision will very seriously
consider testimony about a photograph that has not been
provided at this trial and this jury has not observed.
Id. at 127-128. The trial court denied relief. Id. at 129.
On appeal, Appellant asserts the photograph was inflammatory and
prejudicial because he was not charged “with possession of any of the drugs
or paraphernalia found in that building” and “the Commonwealth never
established who the other people in the picture were, or attempt[ed] to
establish a relationship” between them. Id. He claims the Commonwealth
was “simply attempting to show guilt by association.” Id. at 21. Appellant
concludes that the “photograph gave the impression that the accused was a
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bad person with bad connections” and “[i]t had no other value to the case.”
Id. We find this issue waived.
The photograph in contention was missing and, therefore, it was not
admitted at trial. The Commonwealth elicited testimony that the photograph
was listed on the police property receipt as an item recovered from 121
Tioga Street. Appellant did not object. Likewise, Appellant did not object
when he discovered that the actual photograph was missing and would not
be presented. Instead, Appellant put the issue squarely before the jury
when defense counsel read excerpts from the prior trial pertaining to the
photograph into the current record. As such, Appellant was instrumental in
placing that evidence before the jury. Accordingly, Appellant can hardly
complain now that testimony concerning the photograph is prejudicial to
him. Moreover, Appellant objected only after Officer Liciardello finished
testifying and, again, after the Commonwealth rested. Not only were
Appellant’s objections belated, but his complaints were that the photo was
missing and testimony about it was not the best evidence, not that the
prejudice outweighed the probative value. “A defendant must make a timely
and specific objection at trial or face waiver of her issue on appeal.”
Commonwealth v. Olsen, 82 A.3d 1041, 1050 (2013). Appellant’s
objection was untimely and on a different basis. Hence, we are constrained
to find the issue waived.
Finally, we address Appellant’s second motion to remand to the trial
court based upon after-discovered evidence filed with this Court on
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November 10, 2014. Appellant claims that, on August 6, 2014, he learned
that Officer Thomas Liciardello was indicted by a grand jury in the United
States District Court for the Eastern District of Pennsylvania on charges of
conspiracy, robbery, extortion, possession with intent to deliver cocaine, and
falsification of records. Accordingly, pursuant to Pa.R.Crim.P. 720, Appellant
filed his motion to remand with an attached copy of the indictment.
Appellant avers that the indictment “demonstrates that Thomas Licariardello
was not competent to testify, and that the conviction of Appellant was a
miscarriage of justice.” Appellant’ Second Motion to Remand, 11/10/2014,
at ¶ 11.
We look to the facts of the Castro decision for guidance. As a
previous panel of this Court noted:
The Supreme Court granted review in Castro to decide the
following issue: “Is it possible to meet the test for after-
discovered evidence where the defendant proffers no
evidence, but instead relies on a newspaper article?”
Castro, 93 A.3d at 824. After agreeing with the parties
that the newspaper article at issue was not itself evidence,
but rather a collection of “allegations that suggest such
evidence may exist,” id. at 825, the Court went on to offer
the following guidance about what is required of a criminal
defendant making an after-discovered evidence claim.
We decline to impose a strict requirement that the
proponent of a Rule 720 motion attach affidavits or
other offers of proof; the rule does not contain
express language requiring this, in contrast to the
rules pertaining to PCRA petitions. However, we hold
a motion must, at the very least, describe the
evidence that will be presented at the hearing.
Simply relying on conclusory accusations made by
another, without more, is insufficient to warrant a
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hearing. The article here mentioned individuals who
may have been relevant witnesses in the end, as
well as a video tape and an ongoing investigation
regarding [one of the allegedly corrupt police
officers]. The motion says nothing about which, if
any, of this potential evidence appellee would rely on
to support his request for a new trial. Absent
identification of the actual testimony, physical
evidence, documentation, or other type of evidence
to support the allegations of [police] wrongdoing, we
cannot conclude appellee had evidence to offer; to
conclude otherwise would be speculation.
Commonwealth v. Perrin, 2015 Pa. Super. 4, at *3-4, citing Castro, at 827
(footnote omitted).
Upon review of the motion to remand, and accompanying indictment,
Appellant is not entitled to relief. The indictment lists 22 specific cases of
alleged police wrongdoing; Appellant’s case is simply not one of them.
Hence, Appellant has not identified actual testimony, physical evidence,
documentation, or other evidence to support allegations of Officer
Licairdello’s wrongdoing in this particular matter. Appellant, instead, argues
that general evidence of Officer Licairdello’s alleged wrongdoing would be
used to test his veracity. However, “a defendant seeking a new trial must
demonstrate he will not use the alleged after-discovered evidence solely to
impeach the credibility of a witness.” Commonwealth v. Padillas, 997
A.2d 356, 365 (Pa. Super. 2010) (citation omitted). Thus, we conclude that
Appellant has not presented after-discovered evidence.
Motion to remand denied. Judgment of sentence affirmed.
Jurisdiction relinquished.
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President Judge, now Justice, Stevens did not participate in this decision.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
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