Com. v. Hailey, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATTHEW JASON HAILEY :
:
Appellant : No. 1655 EDA 2019
Appeal from the Judgment Entered January 28, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008422-2017
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 14, 2020
Matthew Hailey appeals from the judgment of sentence1 imposed on
January 28, 2019, following his jury trial conviction of possession with intent
to deliver (“PWID”) methamphetamine.2 Specifically, he claims that the
evidence was not sufficient to support his PWID conviction, the verdict was
against the weight of the evidence, and the trial court erred when it did not
declare a mistrial after alleged prosecutorial misconduct. We affirm.
The following facts were adduced at trial. At 4:49 a.m. on
November 21, 2017, Officer Daniel Rose of the Montgomery
Township Police Department was in his patrol car in the parking
lot of the Rodeway Inn located at 969 Bethlehem Pike,
Montgomeryville, Montgomery County. Officer Rose observed a
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1Although Hailey purported to appeal from the trial court’s order denying his
motion for a new trial, an appeal is properly taken from the judgment of
sentence entered, not an order denying post-sentence motions. We have
amended the caption accordingly.
2 35 P.S. § 780-113(a)(30).
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black Audi sedan exit from State Route 309 northbound and turn
into the parking lot of the motel. The vehicle passed the officer
and continued towards the rear of the parking lot. The light over
the sedan’s license plate was out and it appeared that a piece of
paper was covering the license plate. Officer Rose followed the
vehicle.
Officer Rose observed the vehicle park in the rear of the parking
lot. [Hailey] exited the vehicle from the front passenger seat,
began walking, then stopped and turned around upon noticing
Officer Rose in a marked police car. [Hailey] then got back in the
car he had just exited. The driver then pulled around to the front
of the motel where [Hailey] again exited the vehicle and headed
toward the front desk. At this point the officer turned on his
emergency lights, instructed the vehicle to stop and called
[Hailey] back to the vehicle.
The driver of the vehicle, later determined to be Lacey Williams,
initially provided false information regarding her identity. Williams
refused to grant permission for Officer Rose to search her vehicle.
When questioning [Hailey] about what he and Williams were doing
at the motel, [Hailey] “began to ask why [Williams] wouldn’t let
us search the car.” He told Officer Rose that there must be
something in the vehicle and then stated that he thought there
was “meth” in the vehicle. Officer Rose observed [Hailey] light a
cigarette with a butane lighter, which Officer Rose testified is
commonly used to smoke methamphetamine based upon his
training and experience. [Hailey] also told Officer Rose that he
worked as a painter.
Officer Rose then observed two individuals come out of one of the
motel rooms and walk toward Williams’ vehicle. Williams told
Officer Rose that she and [Hailey] were meeting up with these two
people at the motel. [Hailey], however, stated that he did not
know the other two people, was not there to meet with them and
that he was going to a motel room “to get lucky.”
Officer Pete Byrne and Officer Tony Shearer arrived in the parking
lot to assist Officer Rose. [Hailey] re-entered the front passenger
seat of Williams’ vehicle. [Hailey] told Officer Byrne, like he had
told Officer Rose, that he was a painter. He also remarked to
Officer Byrne that he thought there might be methamphetamine
in the sedan.
After discovering that Williams had an active warrant, the officers
arrested Williams and impounded her vehicle. [Hailey] was
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released and was not searched or charged at that time. Officer
Rose allowed [Hailey] to retrieve his phone from the center
console of Williams’ vehicle before he left. Although [Hailey] did
not ask to retrieve any other items, Officer Rose observed [Hailey]
reach into the back of the vehicle. Officer Rose then ordered
[Hailey] out of the car.
Williams’ vehicle was taken to the Montgomery Township Police
Department impound lot. While Williams was being processed and
after a trained canine had alerted to the presence of narcotics in
her vehicle, Williams changed her mind and consented to a search
of her vehicle. Officer John Rushin searched Williams’s vehicle
later that same day, November 21, 2017. Officer Rushin located a
closed black headphone case in an open shelving area on the dash
between the two front seats of the vehicle. Within the case was
U.S. currency and a black box. Within the black box were two bags
of a substance which appeared to be methamphetamine and a
digital scale. The parties stipulated that one bag contained 27.22
grams of methamphetamine and the other bag contained 2.91
grams of methamphetamine. The digital scale was one commonly
used in narcotics trafficking. Also contained in the headphone case
were unused plastic baggies of a type commonly used for
packaging controlled substances.
Officer Rushin also located a backpack on the floor in the rear of
Williams’ car behind the passenger’s seat. Officer Rushin found a
notebook in the backpack with [Hailey’s] name and address, as
well as a log Defendant kept of his recent work hours. Officer
Rushin also found unused narcotics packaging material, some of
it identical to that in the headphone case. Some of the packaging
materials were stuffed into a Sherwin Williams paint supply bag.
A label for another painting supply company was found on the
bottom of the backpack. The backpack contained two digital scales
commonly used for narcotics trafficking which appeared to have
methamphetamine residue.
Lacey Williams testified she sold methamphetamine as her main
source of income since 2015. She went to the Rodeway Inn on the
morning of November 21, 2017 because she had no water or
electricity at her residence and because she planned to sell
methamphetamine at the motel. Williams testified that [Hailey]
was with her in the car when she arrived at the motel. [Hailey]
was involved in an earlier argument with his girlfriend and asked
Williams to pick him up from his girlfriend’s apartment. Williams
testified [Hailey] placed a backpack in the back seat of her car
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when she picked him up before going to the motel to sell
methamphetamine.
Williams testified that she purchased an ounce of
methamphetamine earlier that morning or the night before and
had sold an “eightball” to [Hailey]. They discussed [Hailey] selling
some portion of that methamphetamine to a friend of his. Williams
gave [Hailey] some of the unused bags found in his backpack to
sell methamphetamine. She stated that the larger bag of
methamphetamine that was recovered by police in the headphone
case was the remainder of the amount she had purchased, and
the smaller bag was the remainder of the eightball she sold earlier
to [Hailey]. Williams and [Hailey] had smoked part of the eightball
that morning and continued to smoke methamphetamine during
the drive to the Rodeway Inn. She did not recall if [Hailey] had
paid her the money for the eightball, but she regularly sold on
credit and stated that she would have been willing to sell to
[Hailey] on credit.
Trial Court Opinion, 9/23/19, at 2-5 (record citations omitted).
After a two-day trial, a jury convicted Hailey of one count of PWID
methamphetamine. The trial court sentenced Hailey to three to six years of
incarceration. Hailey filed a timely post-sentence motion, which the trial court
denied on May 20, 2019. This timely appeal followed.
Hailey raises two issues for our review.
1. Did the trial judge err as a matter of law by allowing a verdict
to stand that was against the weight and sufficiency of the
evidence in terms of the issue that [Hailey] never possessed
with the intent to deliver a controlled substance either
constructively or by actually possessing it?
2. Did the trial court err by allowing the prosecutor, in his opening
and closing arguments, to blatantly bolster the credibility of
Lacey Williams by commenting to the jury on the truthfulness
of her testimony based on the prosecutor’s personal
knowledge, and abuse its discretion in denial of a mistrial for
such prosecutorial misconduct?
Hailey’s Br. at unnumbered page 4.
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Although stated as a single question, Hailey’s first question raises two
distinct issues: a challenge to the sufficiency of the evidence and a challenge
to the weight of the evidence. Hence, we will deal with each issue in turn.
Hailey challenges the sufficiency of the evidence introduced at trial to
support his conviction of PWID methamphetamine. He claims that the
evidence was insufficient to prove that he possessed the methamphetamine
and that he intended to sell it. See id. at unnumbered pages 10-11. We
disagree.
Our standard of review concerning challenges to the sufficiency of the
evidence is to determine whether the evidence at trial and all reasonable
inferences therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, are sufficient for the trier of fact to find
each element of the crime beyond a reasonable doubt. See Commonwealth
v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012).
“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.” Id. (citation omitted). Notably,
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.” Id. (citation omitted). Further, the Commonwealth may
establish the elements of the crime by wholly circumstantial evidence. See id.
Hailey was convicted of violating section 780-113(a)(30) of the
Controlled Substance, Drug, Device, and Cosmetic Act, which prohibits, inter
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alia, the possession with intent to deliver a controlled substance. See 35 P.S.
§ 780-113(a)(30). In order to prove a violation of this section, the
Commonwealth must establish two things, first that the defendant possessed
the drugs in question, and second that the defendant intended to deliver them.
To sustain its burden, the Commonwealth may establish either actual physical
possession or constructive possession. See Commonwealth v. Jones, 874
A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is the ability to
exercise conscious control or dominion over the illegal substance and the
intent to exercise that control,” and the prosecution may prove it by the
totality of the circumstances. Id. Finally, “[t]he amount of the controlled
substance is not crucial to establish an inference of possession with intent to
deliver, if . . . other facts are present.” Commonwealth v. Watley, 81 A.3d
108, 114 (Pa.Super. 2013) (citation and internal quotation marks omitted).
In the instant case, viewing the evidence in a light most favorable to the
Commonwealth, as we are required to do by our standard of review, the
evidence at trial was sufficient to prove that Hailey possessed
methamphetamine with the intent to deliver it. The evidence introduced at
trial demonstrated that Hailey was a passenger in Williams’ vehicle. When he
spoke with Officers Byrne and Rose, he told both officers that he believed
there was methamphetamine in the vehicle. When officers searched the
vehicle, they found two distinct quantities of methamphetamine—27.22 grams
that Williams admitted was hers, and a smaller quantity of methamphetamine,
2.91 grams—both in the front passenger area of the vehicle. Williams testified
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that she had sold that smaller amount to Hailey, and that he intended to sell
some of it to another friend. Officers additionally found a backpack in the rear
of the vehicle containing several of Hailey’s personal items as well as two
digital scales with methamphetamine residue, and unused baggies. Williams
testified that Hailey had placed the backpack in the car, and that she had
provided him with the baggies. Based on the evidence, the jury reasonably
inferred that Hailey possessed methamphetamine and intended to sell it.
Hailey’s challenge to the sufficiency of the evidence to support his conviction
does not merit relief.
Second, Hailey claims that the guilty verdict was against the weight of
the evidence. He contends that the only evidence proving that he possessed
the methamphetamine, or intended to sell it, came from the testimony of
Williams, and argues that her testimony lacked credibility because she was
charged with providing false information to law enforcement. See Hailey’s Br.
at unnumbered page 11. Hailey’s argument is unpersuasive.
A defendant must make a weight challenge to the trial court in the first
instance; we review the trial court’s rejection of such a claim for abuse of
discretion. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)
(citation omitted). “A weight of the evidence claim concedes that the evidence
is sufficient to sustain the verdict, but seeks a new trial on the ground that
the evidence was so one-sided or so weighted in favor of acquittal that a guilty
verdict shocks one’s sense of justice.” Commonwealth v. Lyons, 79 A.3d
1053, 1067 (Pa. 2013) (citations omitted). “[C]redibility determinations are
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made by the fact finder and . . . challenges thereto go to the weight . . . of
the evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.
1997).
After considering Hailey’s weight claim, the trial court concluded that
“the jury’s verdict, including their decision to credit the testimony of Williams,
was not contrary to the weight of the evidence and did not shock the court’s
sense of justice.” Trial Ct. Op., at 9. The jury was free to believe all, part, or
none of Williams’ testimony against Hailey, and it was exclusively within the
jury’s province to weigh these matters. Thus, we conclude that the trial court
did not abuse its discretion when it found that Hailey’s conviction is not so
contrary to the evidence as to shock one’s sense of justice. Hence, Hailey’s
weight claim is meritless.
In his final issue, Hailey claims that the trial court erred and permitted
prosecutorial misconduct when the prosecutor bolstered the credibility of
Williams in his opening and closing statements. This issue is waived.
“If the defendant thinks the prosecutor has done something
objectionable, he may object, the trial court rules, and the ruling—not the
underlying conduct—is what is reviewed on appeal. Where, as here, no
objection was raised, there is no claim of ‘prosecutorial misconduct’ as such
available.” Commonwealth v. Tedford, 960 A.2d 1, 29 (Pa. 2008). In
addition, “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a).
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Our review of the notes of testimony of the trial revealed no instances
where Hailey objected to any statements made by the prosecutor during either
the Commonwealth’s opening statement or closing argument. Nor does it
reveal where Hailey sought a mistrial because of such statement.3
Accordingly, there is no ruling of the trial court concerning the allegedly
objectionable statements. Thus, we conclude Hailey has waived this issue for
failure to raise it before the trial court. Accordingly, we conclude that Hailey’s
issues are meritless or waived, and we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/20
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3 Hailey’s brief does not specify where in the notes of testimony the alleged
prosecutorial misconduct is contained, nor does he cite to where in the record
he moved for a mistrial. See Pa.R.A.P. 2119(c) (requiring reference to place
in record where matter referred to appears). This Court will not play the role
of advocate and argue an appellant’s case for him.
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