Com. v. Haywood, D.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DAVID HAYWOOD, : No. 2032 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered January 2, 2018,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0000115-2016,
BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 09, 2020
David Haywood appeals from the January 2, 2018 judgment of
sentence1 of three to six years’ imprisonment and a $10,000 fine, imposed
after a jury found him guilty of possession of a controlled substance,
possession with intent to deliver a controlled substance (“PWID”), possession
of a small amount of marijuana, and possession of drug paraphernalia.2 The
1 In a separate sentencing order entered at No. CP-45-CR-0000876-2016,
appellant was sentenced to five to ten years’ imprisonment and a $30,000
fine, imposed after a jury found him guilty of PWID, possession of a controlled
substance, possession of a small amount of marijuana, and three counts of
possession of drug paraphernalia. The issues appellant raises with respect to
No. CP-45-CR-0000876-2016 will be addressed at Superior Court Docket
No. 2055 EDA 2019.
2 35 P.S. §§ 780-113(a)(16), (a)(30), (a)(31), and (a)(32), respectively.
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trial court found appellant guilty of the summary offense of making an
improper right turn.3 After careful review, we affirm.
The suppression court summarized the relevant facts of this case as
follows:
On the evening of November 27, 2015, Pennsylvania
State Police Trooper [Leo] Petrucci was coming to a
stop at the intersection of Knob Road and Pocono
Boulevard (State Route 611) when [appellant]
attempted a right turn from Pocono Boulevard onto
Knob Road. Trooper Petrucci’s Mobile Vehicle
Recording (“MVR”) shows his patrol vehicle over the
white stop line but behind the marked cross walk. The
MVR also shows Trooper Petrucci coming to an abrupt
stop and immediately maneuvering his vehicle to the
right. At the hearing on [appellant’s] motions [to
compel discovery and suppress evidence], Trooper
Petrucci testified credibly that these movements were
in response to [appellant’s] making the right turn too
fast and too wide, nearly striking the forward portion
of his patrol vehicle’s driver door. [Appellant] was
unable to complete the right turn in that position so
he backed up his vehicle onto Pocono Boulevard and
then completed the turn. While the MVR does not
show [appellant’s] vehicle during this incident, it does
show another vehicle passing in front of Trooper
Petrucci that was traveling behind [appellant] on
Pocono Boulevard.
Based upon this incident, Trooper Petrucci made a
k-turn on Knob Road and followed [appellant],
effectuating a traffic stop for Disregarding Traffic
Lanes and Improper Right Turn. Trooper MacMillian
was situated just behind Trooper Petrucci on Knob
Road so he, too, responded to the traffic stop to assist.
Approaching [appellant’s] vehicle, Trooper Petrucci
saw that [appellant] was “doing something in his lap”
and asked [appellant] to put his hands on the steering
3 75 Pa.C.S.A. § 3331(a).
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wheel. Upon making contact with [appellant],
Trooper Petrucci observed loose pieces of marijuana
(“marijuana shake”) and a bottle of air freshener in
[appellant’s] lap and smelled the strong odor of air
freshener coming from the vehicle. At this point,
Trooper Petrucci ordered [appellant] out of the
vehicle. After questioning why he was being ordered
out of the vehicle and receiving a response from
Trooper Petrucci, [appellant] complied while
continuing to answer Trooper Petrucci’s questions.
The MVR shows [appellant] exiting the vehicle,
however, [appellant’s] voice is low on the MVR audio
recording and some of his responses to
Trooper Petrucci’s questions are indecipherable.
Trooper Petrucci then asks for permission to search
[appellant’s] front pockets. [Appellant’s] response is
unclear on the MVR, however, Trooper Petrucci is
heard saying “okay,” and he then proceeds to search
[appellant’s] front pocket, finding a small bag of
marijuana. Trooper Petrucci testified that [appellant]
did, in fact, consent to the search and that he would
not have conducted the search if [appellant] had not
consented.
After discovering the marijuana, Trooper Petrucci
immediately placed [appellant] under arrest.
Trooper Petrucci handcuffed [appellant] and
conducted a search of [appellant’s] person incident to
arrest. This search yielded a large sum of money[,
$2,795.00,] and two bricks[Footnote 1] of heroin.
The MVR shows that [appellant] was taken to
Trooper Petrucci’s patrol vehicle where he sat on the
bumper and appeared to have trouble sitting up.
Trooper MacMillian testified that [appellant] was “on
the nod,” which is indicative of narcotics use. After
securing [appellant’s] vehicle, Trooper Petrucci placed
[appellant] in his patrol vehicle and transported him
to the DUI Center. Before leaving, Trooper Petrucci
read [appellant] his Miranda[4] rights and [appellant]
stated that he understood these rights. During the
drive to the DUI Center, [appellant] and
Trooper Petrucci engaged in conversation. Most of the
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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conversation consisted of [appellant] asking questions
and Trooper Petrucci answering. However,
Trooper Petrucci did ask how long [appellant] had
been using drugs and inquired into [appellant’s]
preferred method of ingesting heroin, but
[appellant’s] responses on the MVR are inaudible.
Trooper Petrucci testified that in a later interview at
the Swiftwater Barracks, [appellant] stated he snorts
8 to 10 bags of heroin a day.
[Footnote 1] According to Trooper Petrucci’s
testimony, a brick of heroin contains
50 individual packets – five bundles of ten
packets are wrapped together to make a
brick.
At the DUI Center, [appellant] was read his O'Connell
warnings[5] and his blood was drawn. The results of
[appellant’s] DUI blood draw were positive for THC, a
byproduct of marijuana use. Thereafter,
Trooper Petrucci applied for a search warrant for
[appellant’s] vehicle based on the heroin, marijuana,
and cash found on [appellant’s] person. A search of
[appellant’s] vehicle yielded two additional bricks of
heroin, a marijuana cigarette, and over $1,000 in
cash.
Suppression court opinion, 5/19/16 at 1-3.
On February 26, 2016, appellant filed omnibus pretrial motions to
compel discovery and to suppress the evidence obtained as a result of
Trooper Petrucci’s stop of his vehicle. Following a hearing, the suppression
court denied appellant’s motions on May 19, 2016. The Commonwealth’s
subsequent motion to consolidate Nos. CP-45-CR-0000115-2016 and CP-45-
5An O'Connell warning specifically informs a motorist that his or her driving
privileges will be suspended for one year if he or she refuses chemical testing.
See Commonwealth, Dept. of Transp., Bureau of Traffic Safety v.
O'Connell, 555 A.2d 873, 877 (Pa. 1989).
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CR-0000876-2016 was denied by the trial court on November 15, 2016. On
October 11, 2017, appellant proceeded to a jury trial and was found guilty of
possession of a controlled substance, PWID, possession of a small amount of
marijuana, possession of drug paraphernalia, and the summary offense of
making an improper right turn.6 On January 2, 2018, appellant proceeded to
a sentencing hearing for both Nos. CP-45-CR-0000115-2016 and CP-45-CR-
0000876-2016. (See notes of testimony, 1/2/18 at 27-33.) That same day,
the trial court entered a separate sentencing order at No. CP-45-CR-0000115-
2016, sentencing appellant to three to six years’ imprisonment and a $10,000
fine. (Sentencing order “No. 115 Criminal 2016,” 1/2/18.) Appellant filed
timely, joint post-sentence motions for reconsideration of sentence and a new
trial based on the weight of the evidence, which were denied by the trial court.
Thereafter, appellant filed separate, timely notices of appeal at each docket
number, listing both docket numbers on each.7
6 The Commonwealth withdrew a driving under the influence charge prior to
the commencement of trial. (See notes of testimony, 10/11/17 at 5.)
7 The record reflects that on July 30, 2018, appellant complied with the trial
court’s order and filed a timely concise statement of errors complained of on
appeal, in accordance with Pa.R.A.P. 1925(b), for each corresponding docket
number. On August 16, 2018, the Honorable Arthur L. Zulick (“trial court”)
entered an order indicating that he was relying on the reasoning set forth in
his prior June 22, 2018 opinion that denied appellant’s post-sentence motions.
Subsequently, the Honorable Margherita Patti-Worthington (“suppression
court”) entered an order on August 17, 2018, indicating that she was relying
on the reasoning set forth in her prior May 19, 2016 opinion that denied
appellant’s suppression motion.
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Prior to consideration of the merits of this appeal, we must first address
whether appellant’s notice of appeal complied with the requirements set forth
in the Pennsylvania Rules of Appellate Procedure and Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018). In Walker, our supreme court provided
a bright-line mandate requiring that “where a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed for
each case,” or the appeal will be quashed. Id. at 971, 976-977. The Walker
court applied its holding prospectively to any notices of appeal filed after
June 1, 2018. In the instant case, the record demonstrates that appellant
filed separate notices of appeal at each docket number on July 5, 2018;
however, the notices of appeal referenced both docket numbers in their
respective captions. A recent en banc panel of this court held that such a
practice does not invalidate appellant’s separate notices of appeal.
Commonwealth v. Johnson, A.3d , 2020 WL 3869723 (Pa.Super.
July 9, 2020) (en banc). Moreover, we note that this case does not involve
an appeal of a single order resolving issues arising on both docket numbers.
On the contrary, the trial court entered separate sentencing orders at each
docket number in this matter, and therefore, Walker is not implicated.
Accordingly, we shall consider the merits of appellant’s appeal.
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Appellant raises the following issues8 for our review:
[I.] Whether the suppression court should have
granted [a]ppellant]’s motion to suppress
because the Commonwealth committed a
Brady[9] violation in failing to preserve a mobile
vehicle recording of [a]ppellant’s driving prior to
the stop?
[II.] Whether the trial court should not have
admitted the lab report showing blood alcohol
content, particularly where the Commonwealth
agreed the blood draw was obtained in violation
of Birchfield v. North Dakota[10]?
[III.] Whether the trial court should have precluded
the lab report as the Commonwealth failed to
sufficiently establish the chain of custody?
Appellant’s brief at 6 (emphasis added, extraneous capitalization omitted).11
I. Brady Violation
Appellant first argues that the suppression court erred in denying his
suppression motion because the Commonwealth violated Brady by “failing to
8 We note that appellant filed a single brief for Nos. CP-45-CR-0000115-2016
and CP-45-CR-0000876-2016. As noted, this memorandum will address only
those issues appellant raises with respect to No. CP-45-CR-0000115-2016.
Any issues appellant raises with respect to No. CP-45-CR-0000876-2016 will
be addressed at Superior Court Docket No. 2055 EDA 2019.
9 Brady v. Maryland, 373 U.S. 83 (1963).
10 Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
11For the ease of our discussion, we have reformatted the numbering of
appellant’s issues.
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preserve [the MVR from Trooper MacMillian’s patrol vehicle] of [a]ppellant’s
driving prior to the stop.” (Id. at 6, 23-28.)
Our standard of review when addressing a challenge to a trial court’s
denial of a suppression motion is well settled.
[An appellate court’s] 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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
In Brady, the United States Supreme Court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. In order to establish the existence of a Brady violation, a
defendant must establish: “(1) evidence was suppressed by the prosecution;
(2) the evidence, whether exculpatory or impeaching, was favorable to the
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defendant; and (3) prejudice resulted.” Commonwealth v. Cousar, 154
A.3d 287, 301 (Pa. 2017) (citation omitted).
Courts in this Commonwealth have continually recognized that “the
Commonwealth’s Brady obligation does not extend to information that is not
in its possession[.]” Commonwealth v. Santos, 176 A.3d 877, 883
(Pa.Super. 2017) (citation omitted), appeal denied, 189 A.3d 986 (Pa.
2018). Indeed, “[t]he Commonwealth cannot violate Brady by suppressing
evidence that does not exist.” Commonwealth v. Smith, 17 A.3d 873, 890
(Pa. 2011) (citation omitted), cert. denied, 567 U.S. 937 (2012). The burden
of proof is on the defendant alleging a Brady violation to demonstrate that
the Commonwealth withheld or suppressed evidence. Commonwealth v.
Cam Ly, 980 A.2d 61, 75 (Pa. 2009).
Here, the record supports the suppression court’s determination that
appellant failed to satisfy his burden under Brady. At the suppression
hearing, Trooper MacMillian testified that he did not request the MVR from his
patrol vehicle because he “didn’t have any involvement in the investigation”
and his role in the traffic stop was only to assist Trooper Petrucci in securing
appellant after the traffic stop was completed. (Notes of testimony, 3/29/16
at 59, 61, 62-63.) The suppression court found that this particular MVR did
not exist and credited Officer MacMillian’s testimony that the MVR cannot be
obtained “because such footage is routinely erased after a certain amount of
time if not requested.” (Suppression court opinion, 5/19/16 at 19 n.19.)
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Because appellant has failed to demonstrate that an MVR from
Trooper MacMillian’s patrol vehicle existed or was ever within the
Commonwealth’s control, we discern no error on the part of the suppression
court in concluding that appellant failed to satisfy his burden that “the
evidence was suppressed by the prosecution.” Cousar, 154 A.3d at 301.
Additionally, the record supports the suppression court’s determination
that appellant failed to prove that the MVR at issue was “favorable” to his
case, such that its omission prejudiced him. See id. As the suppression court
explained:
While Trooper MacMillian’s MVR recording may have
shown a wider view of [appellant’s] right turn, we do
not know that and we will not speculate. Two
Pennsylvania State Police Troopers testified to the
circumstances of [appellant’s] right turn.
[Appellant’s] averment that Trooper MacMillian’s MVR
may have shown a different scenario does not
establish the materiality of such a recording.
Suppression court opinion, 5/19/16 at 20 (emphasis in original).
Based on the foregoing, we agree with the suppression court that
appellant’s Brady claim warrants no relief.
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II. Birchfield Violation
Appellant next argues that the trial court abused its discretion in
admitting his lab report detailing his blood test results,12 where the blood draw
was obtained in violation of Birchfield. (Appellant’s brief at 6, 29-31.) We
disagree.
“[T]he admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).
“An abuse of discretion is not merely an error of judgment; rather discretion
is abused when the law is overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record.” Commonwealth v. Antidormi, 84
A.3d 736, 745 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d
275 (Pa. 2014). “Before any evidence is admissible in a criminal proceeding,
it must be competent and relevant.” Commonwealth v. Walter, 849 A.2d
265, 269 (Pa.Super. 2004) (citation omitted), appeal denied, 860 A.2d 489(Pa. 2004). Evidence is relevant if “it has any tendency to make a fact more
or less probable than it would be without the evidence[.]” Pa.R.E. 401(a).
12As discussed, infra, the testimony at trial established that appellant’s blood
test results showed that no heroin or heroin byproducts were found in his
blood. (See notes of testimony, 10/12/17 at 24.)
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In Birchfield, the Supreme Court of the United States addressed the
constitutionality of warrantless searches of breath and blood under the Fourth
Amendment; specifically, with regard to the search-incident-to-arrest and
consent exceptions to the warrant requirement. Birchfield, 136 S.Ct. at
2184. The Birchfield Court held, inter alia, that criminal penalties imposed
on individuals who refuse to submit to a warrantless blood test violate the
Fourth Amendment to the United States Constitution and that a state may not
criminalize a motorist’s refusal to comply with a demand to submit to blood
testing. Id. at 2185-2186 (holding, “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal
offense.”). Following Birchfield, this court held that Pennsylvania’s implied
consent scheme was unconstitutional insofar as it threatened to impose
enhanced criminal penalties for the refusal to submit to a blood test.
Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa.Super. 2017), appeal
denied, 182 A.3d 431 (Pa. 2018).
Although we agree with appellant that the results of his blood draw were
not admissible in the Commonwealth’s case-in-chief pursuant to Birchfield,
we find no merit to his argument that the introduction of said results was not
relevant for any purpose. It is well settled that
[e]vidence that might otherwise be inadmissible
may be introduced for some other purpose,
particularly where Appellant’s own testimony
“opens the door” for such evidence to be used
for impeachment purposes. A litigant opens the
door to inadmissible evidence by presenting proof that
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creates a false impression refuted by the otherwise
prohibited evidence.
Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa.Super. 2018)
(citations and internal quotation marks omitted; emphasis added); see also
Pa.R.E. 607(b) (stating, “[t]he credibility of a witness may be impeached by
any evidence relevant to that issue, except as otherwise provided by statute
or these rules.”).
Courts in this Commonwealth have long recognized that evidence that
a witness was under the influence of alcohol or drugs at the time of the events
to which he testified is relevant to the witness’s credibility and therefore
admissible. See Commonwealth v. Drew, 459 A.2d 318, 321-322 (Pa.
1983); Commonwealth v. Williams, 91 A.3d 240, 244 (Pa.Super. 2014)
(en banc). Specifically, in Williams, a panel of this court held that the trial
court committed an error of law in excluding evidence of the victim’s blood
alcohol content, where it would have allowed the jury to perform its core
function of assessing the victim’s credibility and the weight of his testimony.
Williams, 91 A.3d at 244. Relying on Drew, the Williams court concluded
that “evidence of a witness’[s] intoxication is admissible impeachment
evidence where the witness was intoxicated during the event to which he or
she testifies.” Id.Here, the record establishes that the Commonwealth introduced
evidence of appellant’s blood test results showing an absence of heroin in his
system only after appellant “opened the door” and testified he had used heroin
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on the day he was apprehended. (Notes of testimony, 10/11/17 at 157.) The
Commonwealth was in possession of blood test results that directly refuted
appellant’s testimony, which it introduced during its examination of forensic
toxicologist Donna Papsun. Specifically, Papsun testified as follows:
Q. Let me ask you a question related to heroin and
the two subsidiaries that break down. Were
either one of those found in this case?
A. No.
Q. And when you say they weren’t found in this
case, they weren’t found at any level; is that
correct?
A. No.
Q. And would it be fair to say that at the time you
tested that specimen none of those components
were contained within the blood?
A. No, or they were essentially so low in the
system that -- so low in the blood that it
wouldn’t trigger any kind of screen. It wouldn’t
trigger our testing.
Notes of testimony, 10/12/17 at 24.
Contrary to appellant’s contention, the Commonwealth’s introduction of
this evidence on rebuttal for impeachment purposes was not precluded by
Birchfield and was entirely proper under Murphy, Williams, and Rule 607.
Accordingly, we agree with the trial court that appellant’s Birchfield claim
merits no relief.
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III. Chain of Custody
In his final claim, appellant contests the introduction of the lab report
detailing his blood test results on the basis the Commonwealth “failed to
sufficiently establish the chain of custody.” (Appellant’s brief at 6, 32.)
It is axiomatic that:
In order to preserve a claim for appellate review, a
party must make a timely and specific objection at the
appropriate stage of the proceedings before the trial
court, or the claim is waived.
On appeal, the Superior Court will not consider
a claim which was not called to the trial court’s
attention at a time when any error committed
could have been corrected. The princip[al]
rationale underlying the waiver rule is that
when an error is pointed out to the trial court,
the court then has an opportunity to correct
the error. By specifically objecting to any
obvious error, the trial court can quickly and
easily correct the problem and prevent the
need for a new trial. Additionally, the appellate
court should not be required to waste judicial
resources correcting a problem that the trial
court could have easily corrected if it had been
given the opportunity to avoid the necessity of
granting a new trial.
Commonwealth v. Russell, 209 A.3d 419, 429 (Pa.Super. 2019) (citations
omitted).
Here, the record reflects that although appellant expressed chain of
custody concerns earlier during trial,13 he failed to make timely and specific
objections to both the laboratory’s intake documents detailing the chain of
13 See notes of testimony, 10/12/17 at 4.
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custody for the blood specimen and the toxicology report at the time they
were admitted into evidence. The following transpired at trial:
[Commonwealth]: Your Honor, I don’t have any
further questions for Ms. Papsun. I would move for
admission of the two exhibits.
THE COURT: They were 7 and 8 or 8 and 9?
[Commonwealth]: Eight and 9. I believe 7 -- was the
CV yesterday.
THE COURT: Any objection, [appellant’s counsel]?
[Appellant’s counsel]: No objection.
Notes of testimony, 10/12/17 at 24.
In light of the foregoing, we agree with the trial court that appellant’s
chain of custody claim is waived for failure to raise it in a timely and specific
manner. (See trial court opinion, 6/22/18 at 8; see also Commonwealth
v. Sauers, 159 A.3d 1, 9 (Pa.Super. 2017) (stating that the failure to offer a
timely and specific objection results in waiver of the claim), appeal denied,
170 A.3d 1057 (Pa. 2017).)14
14 Alternatively, even if we were to reach the merits of appellant’s chain of
custody claim, we would find that it warrants no relief. “Chain-of-custody
refers to the manner in which evidence was maintained from the time it was
collected to its submission at trial[.]” In re D.Y., 34 A.3d 177, 185 (Pa.Super.
2011) (citation omitted), appeal denied, 47 A.3d 848 (Pa. 2012). It is well
settled that “any issue regarding gaps in the chain of custody relate to the
weight of the evidence, not its admissibility.” Commonwealth v.
Witmayer, 144 A.3d 939, 950 (Pa.Super. 2016) (citations omitted; emphasis
added), appeal denied, 169 A.3d 27 (Pa. 2017). “A complete chain of
custody is not required so long as the Commonwealth’s evidence, direct and
circumstantial, establishes a reasonable inference that the identity and
condition of the exhibits have remained the same from the time they were
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For all the foregoing reasons, we affirm the trial court’s January 2, 2018
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/20
first received until the time of trial.” Commonwealth v. Alarie, 547 A.2d
1252, 1255 (Pa.Super. 1988) (citation omitted), appeal denied, 557 A.2d
720 (Pa. 1989). Here, both Papsun and Detective Mario Orlando testified at
great length with regard to the chain of custody of appellant’s blood specimen,
and the fact-finder evidently found this testimony credible. (See notes of
testimony, 10/12/17 at 14-18, 30-33.) We are precluded from reweighing
the evidence and substituting our judgment for that of the trier-of-fact.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
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