Com. v. Johnson, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYREE JOHNSON :
:
Appellant : No. 2942 EDA 2018
Appeal from the Judgment of Sentence Entered September 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000327-2018
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: Filed: April 30, 2020
Tyree Johnson appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his convictions for
possession of a controlled substance,1 possession with intent to deliver
(PWID),2 conspiracy—PWID,3 and possession of drug paraphernalia.4 Upon
careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16).
2 35 P.S. § 780-113(a)(30).
3 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).
4 35 P.S. § 780-113(a)(32).
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Throughout the first week of November 2017, Officer Michelle Proctor of
the Philadelphia Police Department and her partner, Officer Beattie,5
conducted surveillance of a residence located at 1841 Morris Street in
Philadelphia, after receiving information that narcotics were being sold at that
address. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 6-8.
Over the course of the week, the officers conducted five controlled drug
purchases at the house with the assistance of a confidential informant (CI)
who previously participated in numerous investigations that led to several
arrests and drug confiscations. Id. at 15-16.
On November 1, 2017, the officers gave the CI twenty dollars of pre-
recorded buy money and instructed the CI to purchase marijuana at the
house. Id. at 8. From her vehicle, Officer Proctor observed the CI speak with
Johnson and an unknown male outside the house. Id. at 8-9, 20. Officer
Proctor watched the CI hand the buy money to the unknown male, who
handed the CI a clear bag containing a substance that was later tested and
confirmed to be marijuana. Id. at 8-10. Following the purchase, Johnson and
the unknown male entered the house. Id. at 9. The next day, November 2,
2017, the officers gave the CI another twenty dollars of pre-recorded buy
money and instructed the CI to purchase marijuana at the house again. Id.
at 10. Officer Proctor observed Johnson exit the house and speak with the CI,
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5 Only Officer Beattie’s surname and badge number (No. 9597) are provided
in the certified record. See N.T. Suppression/Motion to Compel Hearing/Trial,
7/10/18, at 8, 12, 63.
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who handed Johnson the buy money. Id. Johnson returned inside, came
back out, and handed the CI a clear bag containing marijuana. Id. On
November 3, 2017, the officers gave the CI forty dollars of pre-recorded buy
money and instructed the CI to purchase crack cocaine and heroin at the
house. Id. Officer Proctor watched Johnson exit the house, speak with the
CI, and take the buy money from the CI. Id. at 10-11. Johnson went inside,
came back out, and gave the CI two red packets containing a substance later
tested and confirmed to be heroin, and one yellow packet containing a
substance later tested and confirmed to be crack cocaine. Id. On November
6, 2017, the officers gave the CI twenty dollars of pre-recorded buy money
and instructed the CI to purchase crack cocaine at the house again. Id. at
11. Officer Proctor saw Johnson on the front steps of the house and saw the
CI walk to and from the house, but did not witness any exchange because
traffic obstructed her view. Id. The CI returned to the officers with one
orange packet containing crack cocaine. Id. Officer Proctor then applied for
and obtained a search warrant for the house. Id.
The following day, November 7, 2017, Officers Proctor and Beattie met
with the CI near the house, handed the CI twenty dollars of pre-recorded buy
money, and instructed the CI to purchase crack cocaine at the house a third
time. Id. at 12. The CI spoke with Quadir Rodison on the front steps of the
house and, as Rodison went inside, another man, Ramon Dixon, guarded the
doorway. Id. Rodison returned and, in exchange for the pre-recorded buy
money, handed the CI two clear packets containing crack cocaine before he
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and Dixon went back inside. Id. Officer Beattie relayed this information to
backup officers in the area and instructed them to execute the search warrant.
Id. at 13. Johnson and his cousin Ramel6 entered the premises minutes
before the warrant was executed. Id. at 24, 74-76. As seven or more officers
dressed in full raid gear approached the house, they observed Rodison in the
window beside the front door, and attempted to “play it off initially” by walking
“a little bit past the first house.” Id. at 13, 33. Upon seeing the raid team
ascend the steps, however, Rodison ran away from the window, away from
the direction of the front door beside him. Id. at 13, 18, 31-33. Noticing
Rodison’s flight, the raid team used force to open the front door of the house
without knocking or announcing their identity and purpose.7 Id. at 13, 32.
Inside the house, the raid team found Johnson, Rodison, Dixon, and
Ramel in the front bedroom of the second floor. Id. All four men were
detained, identified, and placed under arrest. Id. at 13. Police recovered two
packets of heroin from underneath the bed, $178 in pre-recorded buy money
from Dixon, and $63 in pre-recorded buy money from Rodison. Id. at 13-14.
From the middle bedroom, police recovered one clear bag containing 13
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6Officer Proctor and the Commonwealth refer to Ramel as “Ramel Robinson,”
N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13, 14, 18, 28,
but Johnson testified that Ramel’s last name is “Rodison.” Id. at 76.
7 In that moment, Officer Proctor was behind the house securing the rear exit,
and she did not personally observe Rodison flee from the window; she was
informed of Rodison’s flight via police surveillance radio immediately prior to
the raid team’s entry. N.T. Suppression/Motion to Compel Hearing/Trial,
7/10/18, at 28-33.
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orange packets of crack cocaine, one clear bag containing 15 grams of bulk
crack cocaine, six clear jars of marijuana, one tin can containing 98 packets
of heroin, and a scale. Id. at 14. From the rear bedroom, police recovered
five jars of marijuana, “one packet of [h]eroin stamped, El Chapo,” four brown
boxes of unused blue glassine bags (used for packaging heroin), Johnson’s
probation card, and a Pennsylvania ID bearing Johnson’s name and the
address of that house, 1841 Morris Street. Id. at 14-16.
On July 10, 2018, the trial court held a hearing on Johnson’s motion to
suppress the evidence recovered from his house, during which Officer Proctor
testified to the facts above. See id. at 7-36. The trial court denied Johnson’s
motion. See id. at 47-49. The court proceeded to hear argument on
Johnson’s motion to compel the disclosure of the identity of the CI, which the
court also denied. See id. at 49-56. That same day, Johnson waived his right
to a jury trial and the Honorable William Mazzola found him guilty of the
above-stated crimes. See id. at 57-60, 84. On September 24, 2018, the
court sentenced Johnson to an aggregate term of one to three years’
imprisonment followed by five years of probation. Johnson timely filed a
notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Johnson raises the following issues for our
review:
1. [Whether t]he trial court erred by denying the [m]otion to
[s]uppress where the police violated the knock and announce
rule when entering [Johnson’s] premises without any exigent
circumstances[?]
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2. [Whether t]he trial court erred by denying the [m]otion to
[c]ompel [d]isclosure of [CI] where the [CI’s] identity was
material to the defense of mistaken identification, and the
request was reasonable as disclosure would not jeopardize the
[CI’]s safety[?]
3. [Whether t]he evidence was insufficient to adjudicate
[Johnson] guilty of [c]riminal [c]onspiracy where the
Commonwealth failed to prove that [Johnson] made an
agreement with others to distribute narcotics[?]
Brief of Appellant, at 11-14.
Johnson first claims that the trial court erred by denying his motion to
suppress. He argues that when police forcibly entered his home, in violation
of the “knock and announce rule,” they violated his constitutional right to be
free from unreasonable searches and seizures. Brief of Appellant, at 10.
In an appeal from the denial of a motion to suppress, our review is
“limited to determining whether the record supports the suppression court’s
factual findings and the legitimacy of the inferences and legal conclusions
drawn from those findings.” Commonwealth v. Hall, 199 A.3d 954, 959
(Pa. Super. 2018) (quotations and citations omitted).
In making this determination, we may only consider the evidence
of the prosecution’s witnesses and so much of the defense as,
fairly read in the context of the record as a whole, remains
uncontradicted. When the factual findings of the suppression
court are supported by the evidence, we may reverse only if there
is an error in the legal conclusions drawn from those factual
findings.
Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998).
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
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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 plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. Super. 2010).
Pennsylvania Rule of Criminal Procedure 207 provides that law
enforcement officers are required to knock and announce their identity and
purpose to any occupant of the premises and wait a reasonable period of time
for a response before executing a search warrant, “unless exigent
circumstances require the officer’s immediate forcible entry.” Pa.R.Crim.P.
207(A)-(B). In Pennsylvania, we have recognized four exigent circumstances
that constitute “exceptions to the requirements of the knock and announce
rule.” Commonwealth v. Wagstaff, 911 A.2d 533, 536 (Pa. Super. 2006).
These exceptions are: (1) the occupants remain silent after repeated
knocking and identification; (2) the police are virtually certain that the
occupants already know their purpose; (3) the police have reason to believe
that an announcement prior to entry would imperil their safety; and (4), the
police have reason to believe evidence is about to be destroyed. Id.; see
also Commonwealth v. Kane, 940 A.2d 483, 489 (Pa. Super. 2007) (“[I]n
order to invoke an exception, police must only possess a reasonable suspicion
that one of these grounds is present.”).
To determine whether suppression is appropriate based on a violation
of the knock and announce rule, “police conduct must be examined in light of
the Fourth Amendment, which mandates that police [act] reasonabl[y].” Id.-7-
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at 491. “Under Rule 207 (and criminal law in general), what is ‘reasonable’ is
a case-by-case determination based upon the information available to the
police.” Wagstaff, supra at 535. “An action is ‘reasonable’ under the Fourth
Amendment, regardless of the individual officer’s state of mind, as long as the
circumstances, viewed objectively, justify the action.” Commonwealth v.
Coughlin, 199 A.3d 401, 410 (Pa. Super. 2018). The Commonwealth
possesses the burden of establishing by a preponderance of the evidence that
the search or seizure satisfied the mandates of Rule 207 and that the evidence
is therefore admissible. Wagstaff, supra at 535. Finally, we note that:
There are no set rules as to the time an officer must wait before
using force to enter a house; the answer will depend on the
circumstances of each case. No case in this Commonwealth
interpreting this rule has ever required officers to wait until the
occupants destroy the evidence or flee and thus render a search
unavailing or an arrest impossible.
Commonwealth v. Walker, 874 A.2d 667, 674 (Pa. Super. 2005).
Here, the Commonwealth admitted that the police did not knock and
announce their identity and purpose before entering Johnson’s home by force,
but contended that the entry was justified because the occupants knew they
were coming and why, might have been armed and offered resistance, and
because police had reason to believe that evidence would be destroyed. N.T.
Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 22, 32, 43-47. At
the suppression hearing, Officer Proctor testified that the raid team used force
to enter Johnson’s home because they saw Rodison run from the window and
sought to get inside the house before evidence was destroyed by the
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occupants. Id. at 32. Johnson argues that the police lacked any exigent
circumstance to justify forcibly entering his home without knocking,
announcing their purpose and identity, and waiting a reasonable period of
time. Brief of Appellant, at 13. Specifically, Johnson argues that Rodison’s
flight from the window as police approached the home was insufficient to
establish that narcotics, paraphernalia, or currency would be destroyed. Id.
At the hearing on Johnson’s motion to suppress, the trial court offered
the following rationale for denying the motion:
[I]t is clear that by a preponderance of the evidence[—]probably
more[—]that the police were justified in believing, obviously, that
there were drugs in the location, not only because of the
surveillance that happened from the prior six days, but there was
actually an alleged drug sale to the CI involved in this case made
on the day the search warrant was executed not too long
beforehand. As pointed out, [Johnson,] who had been identified
by the officer as participating in prior drug sales from that
location[,] had just arrived moments before. The police were, as
stated, dressed in raid gear, which has blue and yellow police all
over them so it is quite clear who they were. There were seven
of them. You usually don’t see seven police officers walking
together on routine patrol. They approached the house trying to
be covert, but [were] unsuccessful. A person previously
identified as one of the conspirators involved[, Rodison,] is
at the bay window, sees them, and runs away from the
window. He does not run in the direction of the door, which
is to the left of the window. He runs away from the
window. I think under all these circumstances the police were
justified; and [t]he [c]ourt is justified in finding that the people
inside the premise[s] know the purpose when seven police decked
out in raid gear are at the front door. I see no evidence in
anything that is recovered or during the various transactions of
any weapons, I do not think the safety issue alone would justify
the exigent circumstances. . . . The running away from the
window evidence [supports] not only that the occupants
knew what was happening, but that [there was] a strong
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possibility that the evidence could be destroyed. I am going
to deny the motion.
Trial Court Opinion, 5/13/15, at 9-10 (emphasis added).
In Commonwealth v. Beard, 461 A.2d 790, 792 (Pa. 1983), the
Pennsylvania Supreme Court explained that,
[t]he fact that [the appellant] recognized the police and[,] upon
doing so, fled into the residence is sufficient evidence that he knew
the identity and purpose of the police. Thus, the police had valid
grounds for being virtually certain that [the Appellant] had
ascertained their purpose and would attempt to destroy the
evidence of narcotics. In such circumstances, noncompliance with
the knock and announce requirement is excused.
Id. at 792-93 (emphasis added); see also Commonwealth v. Dial, 285
A.2d 125, 127 (Pa. 1971) (“when [officers] heard the sounds of running and
the door was not opened, they were warranted in thinking that they were
refused admittance and that an effort was underway to destroy evidence”);
Commonwealth v. Dean, 693 A.3d 1360 (Pa. Super. 1997) (officers with
specific, articulable reason to believe exigent circumstances exist are justified
in departing from knock and announce rule).
Here, Rodison, who was previously identified as a drug dealer, and who
sold drugs at the house just prior to the warrant’s execution, fled from the
window and front door upon seeing the raid team approach.8 Rodison’s flight
gave the raid team a specific, articulable basis for believing exigent
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8 In fact, police apprehended Rodison (and the other coconspirators) on the
second floor of the home where all of the contraband was located. N.T.
Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13-14.
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circumstances existed to justify a knock and announce violation; specifically,
the police were virtually certain that the occupants already knew their
purpose, and they had reason to believe evidence was about to be destroyed.
Beard, supra; Dean, supra; Dial, supra. Accordingly, the suppression
court properly denied Johnson’s suppression motion.
Johnson also claims that the trial court erred by denying his motion to
compel the disclosure of the CI. He contends that disclosure of the CI’s
identity was material to the preparation of his defense and that his request
for disclosure was reasonable in that the CI’s safety would not be jeopardized.
Brief of Appellant, at 15-16.
“Our standard of review of claims that a trial court erred in its disposition
of a request for disclosure of an informant’s identity is confined to abuse of
discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super.
2013). “Under Pennsylvania Rule of Criminal Procedure 573, a trial court has
the discretion to require the Commonwealth to reveal the names and
addresses of all eyewitnesses, including confidential informants, where a
defendant makes a showing of material need and reasonableness.”
Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010); see also
Pa.R.Crim.P. 573(B)(2)(a)(i). The Commonwealth enjoys a qualified privilege
to withhold the identity of a confidential source; “only after the defendant
shows that the identity of the confidential informant is material to the defense
is the trial court required to exercise its discretion to determine whether the
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information should be revealed by balancing relevant factors,[9] which are
initially weighted toward the Commonwealth.” Commonwealth v. Watson,
69 A.3d 605, 607-08 (Pa. Super. 2019), quoting Marsh, supra at 321-22.
Here, Johnson contends that he overcame the Commonwealth’s
qualified privilege against disclosure with evidence establishing that disclosure
was both material to his mistaken identity defense and reasonable. Brief of
Appellant, at 15-16. Regarding the first prong, Johnson submits that he
established a material need for disclosure because he denied his involvement
in any drug sale and “testified that he looked like his cousin Ramel who also
lived at the property.” Id. at 15. However, Johnson only testified that Ramel
“looks like [him]”—having a “husky buil[d]” and “facial hair”—at trial, after
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9In striking the proper balance, the court must consider the following
principles:
A further limitation on the applicability of the privilege arises from
the fundamental requirements of fairness. Where the disclosure of
an informer’s identity, or of the contents of his communication, is
relevant and helpful to the defense of an accused, or is essential
to a fair determination of a cause, the privilege must give way. In
these situations[,] the trial court may require disclosure and, if
the Government withholds the information, dismiss the action.
[N]o fixed rule with respect to disclosure is justifiable. The
problem is one that calls for balancing the public interest in
protecting the flow of information against the individual’s right to
prepare his defense. Whether a proper balance renders
nondisclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer’s testimony, and other relevant factors.
Marsh, supra at 322.
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the court denied his motion to compel disclosure. See N.T.
Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 76-77. In arguing
the motion, Johnson simply averred that the CI would provide exculpatory
information, but “failed to explain how the revelation of the CI’s identity would
be material in preparing his defense” and “how the CI possessed relevant
information.” Commonwealth v. Ellison, 213 A.3d 312, 318 (Pa. Super.
2019). Accordingly, Johnson failed to make the threshold showing that the
identity of the CI was material to the preparation of his defense, and the trial
court did not err in denying his motion to compel disclosure. See id. (mere
assertion that CI’s identity is material to defense imposes no duty on trial
court to balance competing interests and determine if disclosure required).
Lastly, Johnson challenges the sufficiency of the evidence of his
conviction for criminal conspiracy—PWID. Whether sufficient evidence exists
to support the verdict is a question of law; our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Tejada, 107 A.3d
788, 792 (Pa. Super. 2015). We review the evidence in the light most
favorable to the Commonwealth as verdict winner to determine whether there
is sufficient evidence to allow the trier of fact to find every element of a crime
beyond a reasonable doubt. Id.In applying the above test, we may not weigh the evidence and
substitute our judgment for [that of] 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
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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
[fact-finder,] while passing upon the credibility of the witnesses
and the weight of the evidence produced, is free to believe all,
part[,] or none of the evidence.
Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).
A person commits the crime of PWID by knowingly creating, delivering,
or possessing with intent to deliver a controlled substance or counterfeit
controlled substance. 35 P.S. § 780-113(a)(30). To prove the crime of
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 shared criminal intent, and that an overt act was
taken in furtherance of the conspiracy. Commonwealth v. Feliciano, 67
A.3d 19, 25-26 (Pa. Super. 2013) (en banc); 18 Pa.C.S.A. § 903.
Johnson argues that the Commonwealth failed to prove beyond a
reasonable doubt that he made an agreement with others to distribute
narcotics. Brief of Appellant, at 18. Specifically, he submits that, “[a]t most,
the evidence showed that multiple individuals sold their respective narcotics
from the same house[;]” Johnson did not exchange narcotics or money with
another individual, and none of the packets recovered from his bedroom
matched the packets in the other bedrooms. Id.
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“An explicit or formal agreement to commit crimes can seldom, if 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.”
Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998). “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.” Feliciano, supra quoting
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). These
factors “may create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt.” Devine, supra at 1147. In
Feliciano, supra, we concluded that there was sufficient evidence to sustain
the appellant’s conviction for conspiracy to commit PWID where a woman
exited the defendant’s house and told an undercover agent, “He’s bagging it
up. He will be out,” before the defendant exited the house and handed the
agent five bags of cocaine. Id. at 26. We rejected the appellant’s argument
that the Commonwealth failed to prove the existence of any agreement
between the appellant and the woman, explaining that, because the appellant
acted in accordance with her statement to the agent, it was “sufficiently
evident that [a]ppellant entered into an agreement with [her] with the shared
criminal intent of selling cocaine, and he committed the necessary overt act
by selling the drug.” Id. Thus, here, it was not necessary for the
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Commonwealth to prove that Johnson made an express agreement with the
others to distribute narcotics or share in the profits. Johnson, supra; see
also Feliciano, supra.The evidence, viewed in the light most favorable to the Commonwealth
as verdict winner, shows that four individuals including Johnson were engaged
in a drug sales operation together and exercised joint possession and control
over the premises as well as the drugs and packaging materials inside. In
addition to the drug sales Johnson made to the CI over several days, Johnson
was present when an unidentified male sold marijuana to the CI from the
premises on November 1, 2017. Furthermore, during the week the warrant
was executed, both Johnson and Rodison sold crack cocaine to the CI, but all
of the crack cocaine recovered from the house was kept outside of Johnson’s
bedroom; this belies his argument that the individuals maintained their own
“respective narcotics.” Brief of Appellant, at 18. We agree with the trial
court’s conclusion that “[a]ny jury could have reasonably inferred that all of
them were aiding each other in [their] endeavors in a tacit conspiratorial
agreement based on the circumstantial evidence.” Trial Court Opinion,
5/13/18, at 18. In sum, the evidence is sufficient to sustain Johnson’s
conviction for conspiracy to commit PWID.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/20
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