Com. v. Quarles, S.

J-S08008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN LEWIS QUARLES :
:
Appellant : No. 1204 MDA 2021
Appeal from the Judgment of Sentence Entered July 9, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004924-2019
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 22, 2022
Sean Lewis Quarles appeals from the judgment of sentence of seven to
fourteen years of incarceration, which was imposed after a jury convicted him
of several drug-related offenses, including one count of possession with intent
to deliver (“PWID”) heroin and fentanyl and two counts of PWID cocaine. We
affirm.
On the morning of August 23, 2019, Appellant drove two individuals,
James Patterson (“Patterson”) and Danny Seng (“Seng”), in a silver Infiniti to
the R&M Variety Shop in Harrisburg. While inside the store, video surveillance
captured the three men standing at the counter. Ultimately, Patterson
purchased a digital scale, mortar and pestle, Pyrex measuring cup, and
straining utensil, all of which were consistent with the manufacturing of crack
cocaine. The three men then left in the silver Infiniti.
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At approximately 7:30 p.m., Patrol Officer Andrew Cortelazzi observed
a silver Infiniti with the license plate “LCR 2079” in an area of the city known
for drug-trafficking. The Infiniti had illegal tint on the rear windows and an
inoperable center brake light. The officer followed the vehicle until it began
to park. At that time, the officer activated his emergency lights to initiate a
traffic stop, but the Infiniti drove away at a high rate of speed. As Officer
Cortelazzi pursued the vehicle, he observed a blue bag being thrown from the
passenger’s side of the Infiniti. Officer Cortelazzi notified other officers to be
on the lookout for the vehicle. In the meantime, he stopped his pursuit to
investigate the discarded bag. Inside the bag, he recovered what was later
tested and confirmed as a waxy paper packet containing 12.32 grams of
heroin and fentanyl, a knotted plastic bag corner containing one MDA tablet,
one white glassine bag marked with a snake head image and “420 VENOM”
with cocaine residue, five pink glassine bags containing a total of 0.85 grams
of heroin and fentanyl, one partial pink glassine bag containing residue, one
white glassine bag marked with a snake head image and “420 VENOM” with
residue, one knotted plastic bag containing 12.3 grams of cocaine base, 0.06
grams of marijuana, $106.01 in cash, a piece of paper, numerous rubber
bands, grains of rice, a metal razor blade, a pencil, a plastic toy, metal
scissors, four empty plastic bags, a firearm holster, a straw with residue, and
a digital scale.
Later that evening, Patrol Officer Brian Carriere received an advisory
report of an abandoned vehicle on Bombaugh Street in Harrisburg. Officer
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Carriere responded to the area and found the silver Infiniti with license plate
“LCR 2079” parked in the middle of the street. Edwin Aleman, Sr. (“Mr.
Aleman”), who owns a garage in the area, had earlier observed the Infiniti
stop in the middle of the road because another vehicle was obstructing traffic.
The driver and front seat passenger emerged from the vehicle and ran through
an alleyway. Officers reviewed footage from a video camera on a nearby
chicken coop and identified the two men as Appellant and Seng. At trial, Mr.
Aleman viewed the same video and identified the two men in the video as the
same men who parked the Infiniti near his garage and ran through the alley.
The Infiniti was towed and on August 26, 2019, a search warrant was
executed. The search revealed, inter alia, a cell phone and a receipt from the
R&M Variety Shop. The vehicle and some of the items were dusted for finger
and palm prints. Patterson was the source for the print lifted from the cell
phone; Patterson, Seng, and Appellant were sources for some of the nineteen
prints lifted from inside the vehicle.
Police determined that the Infiniti was registered to Sophia Gascot (“Ms.
Gascot”), whom they interviewed on August 26, 2019. Ms. Gascot informed
police that she met Appellant in May 2019. A few months later, Appellant
asked to transfer title in his Infiniti to her for a brief period. Ms. Gascot agreed
and the two completed the transfer on July 23, 2019. At the time of the
interview, Ms. Gascot told police that Appellant had told her that the Infiniti
had been stolen from him a couple days earlier. At trial, however, Ms. Gascot
claimed that she was sick at the time of the interview and did not remember
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telling police that Appellant had notified her that the Infiniti had been stolen
from him. A subsequent search of Ms. Gascot’s phone revealed that Appellant
called her seven times between 7:30 p.m. and 8:09 p.m. on the night of the
incident, and they spoke on the phone for over eight minutes the following
day. Ms. Gascot testified she did not remember those calls because she was
sick at the time.
On September 10, 2019, police executed search warrants at Appellant’s
residences on State Street and Hummel Street, as well as Seng’s residence
on Regina Street, all of which were in Harrisburg. Of relevance to this appeal,
police recovered Appellant’s mail and a digital scale at the State Street
residence. At the Hummel Street residence, the Special Emergency Response
Team (“SERT”) of the Pennsylvania State Police secured the residence prior to
execution of the search warrant. As SERT announced its presence outside the
residence, a SERT drone operator recorded a thermal image of an arm
throwing an object onto the roof of the residence from an open window. As
the first responding SERT member reached the third floor, he encountered
Appellant re-entering the third floor of the residence through an open window.
Upon inspection, the SERT member observed a firearm on the rooftop outside
the window.
Critically, Appellant was the only individual on the third floor, which
appeared to be a separate living space within the rooming house as it had its
own key. Ultimately, the police recovered, inter alia, the firearm from the
rooftop, as well as mannitol, a cutting agent, and 1.54 grams of crack cocaine
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from the third floor. Appellant was arrested. Based on the search and the
August 23, 2019 incident, Appellant was charged with one count each of PWID
heroin and fentanyl, conspiracy, recklessly endangering another person
(“REAP”), and persons not to possess firearms, as well as two counts each of
PWID cocaine and tampering with evidence.
On May 17, 2021, Appellant proceeded to a four-day joint jury trial with
co-defendant Seng. The Commonwealth agreed to bifurcate the persons not
to possess firearms charge so the jury would not hear evidence of the prior
conviction that rendered Appellant ineligible to possess a firearm. Instead,
the verdict sheet contained an interrogatory as to whether Appellant
possessed the firearm recovered during the September 10, 2019 search. If
the jury answered yes, the trial court would then enter a finding of guilt as to
persons not to possess firearms.
At trial, Seng testified and implicated Appellant, whom he identified as
the driver of the Infiniti when the bag was discarded. According to Seng, the
bag belonged to Appellant, Seng was unaware of its existence or contents,
and it was Appellant who retrieved the bag from underneath his leg and threw
it out the passenger window during the chase. Appellant chose not to testify.
At the conclusion of the trial, the jury convicted Appellant of all charges.1
Since the jury found that Appellant was in possession of the firearm, the trial
court also convicted him of persons not to possess firearms. On July 9, 2021,
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1 Seng was also convicted as charged. He has separately appealed his
judgment of sentence to this Court at 1180 MDA 2021.
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the trial court sentenced Appellant to the following concurrent terms of
incarceration: seven to fourteen years for PWID heroin and fentanyl, two and
one-half to five years for each count of PWID cocaine, six to twelve years for
conspiracy, one to two years for REAP, nine months to two years for each
count of tampering with evidence, and seven to fourteen years for persons
not to possess firearms. Appellant filed a post-sentence motion, which the
trial court denied.
This timely filed appeal followed.2 Both Appellant and the trial court
complied with Pa.R.A.P. 1925. Appellant presents the following issue for our
review: “Whether the trial court erred in denying the motion for mistrial when
Commonwealth’s witness referred to Appellant having been previously
incarcerated, violating the pretrial ruling preventing such statements?”
Appellant’s brief at 6 (unnecessary capitalization omitted).
We consider this issue mindful of our standard of review:
A mistrial upon motion of one of the parties is required only when
an incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial trial. It is within the
trial court’s discretion to determine whether a defendant was
prejudiced by the incident that is the basis of a motion for
a mistrial. On appeal, our standard of review is whether the trial
court abused that discretion.
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2 Since the thirtieth day following the court’s denial of Appellant’s post-
sentence motion was a Saturday, his notice of appeal was due the next
business day, Monday, September 13, 2021. See 1 Pa.C.S. § 1908
(“Whenever the last day of any [period of time referred to in a statute] shall
fall on Saturday or Sunday, . . . such day shall be omitted from the
computation.”).
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Commonwealth v. Bennett, 225 A.3d 883, 890 (Pa.Super. 2019) (cleaned
up).
A mistrial is warranted when a juror could reasonably infer from
the facts presented that the accused had engaged in prior criminal
activity. When the statement at issue relates to a reference to
past criminal behavior, the nature of the reference and whether
the remark was intentionally elicited by the Commonwealth are
considerations relevant to the determination of whether
a mistrial is required. A singular [sic], passing reference to prior
criminal activity is usually not sufficient to show that the trial court
abused its discretion in denying the defendant’s motion for
a mistrial.
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008) (cleaned
up).
Appellant challenges the trial court’s denial of two different mistrial
motions during Ms. Gascot’s testimony.3 We begin with the first, which
concerns testimony about Appellant’s prior incarceration. Specifically, the
following exchange occurred during her direct examination by the
Commonwealth:
Q: Did [Appellant] pay you to have this vehicle in your name?
A: No.
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3 We observe that Appellant only referenced the first mistrial motion in his
statement of questions. However, as the second contested mistrial ruling
occurred during the same witness’s testimony and was preserved in
Appellant’s Rule 1925(b) statement, we conclude that the argument
concerning the second mistrial motion was fairly suggested by the statement
of questions and decline to find waiver. See Pa.R.A.P. 2216 (“The statement
will be deemed to include every subsidiary question fairly comprised therein.
No question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”).
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Q: He didn’t pay you anything?
A: Nope.
Q: You just did this out of the kindness of your heart?
A: Well, I thought I was helping.
Q: Why would you do that for him?
A: Because he was saying that he just had got out of prison,
he just got a construction job and he wanted to - -
N.T., 5/17/21-5/20/21, at 135-36. At that point, Appellant’s counsel objected
and the court held a sidebar conference during which Appellant moved for a
mistrial. Finding that nothing in the question caused the answer and that Ms.
Gascot had instead spontaneously volunteered that Appellant had been in
prison, the court denied the motion. In doing so, the court also noted that it
was unclear whether the jury even heard the statement. According to the
court, the proper remedy would be to either ignore it or give a cautionary
instruction. Id. at 136-37. When the Commonwealth offered to direct Ms.
Gascot to avoid saying anything else regarding his prior incarceration,
Appellant’s counsel responded, “please.” Id. at 137. Thus, Appellant’s
counsel chose to ignore the statement in lieu of a curative instruction.
In its Rule 1925(a) opinion, the trial court elaborated on its rationale as
follows:
Appellant’s prior incarceration was referenced merely in passing
in response to a question that had nothing to do with Appellant’s
prior criminal record, and other than this one inference, there was
no further testimony regarding his incarceration throughout the
four-day trial in this matter. Moreover, there was no detailed
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testimony as to the specifics of Appellant’s prior incarceration or
the criminal activity that may have led to his incarceration. Taking
all this context into consideration, we cannot find that the mention
of his recent release from incarceration was so prejudicial to
Appellant as to justify the extraordinary remedy of a mistrial.
Trial Court Opinion, 11/10/21, at 14.
Appellant argues “[t]here was no reason for the prosecution to ask what
Ms. Gascot’s reasoning was behind wanting to help Appellant out with a
vehicle. The question which elicited the prejudicial answer was irrelevant to
the charges and Ms. Gascot’s overall testimony.” Appellant’s brief at 17.
Appellant also challenges the court’s conclusion that the statement was brief,
instead contending that he was prejudiced by the testimony. Id. at 18-19.
At trial, Ms. Gascot described Appellant as an associate whom she
permitted to transfer title in a vehicle to her after knowing him for a few
months. As part of that transaction, she also agreed to pay for insurance on
the vehicle. Appellant asked her to do this on a temporary basis because he
did not currently have his license, so they planned to re-transfer title to him
when he got his license back at the end of the month. Although she claimed
that, to her knowledge, Appellant did not drive the vehicle while she held title,
she also stated that she agreed to the transfer as a way to help him because
he stated that he needed to transfer title to her so he could drive to work and
see his children. Additionally, despite Ms. Gascot’s acknowledgement that she
did not drive the Infiniti, she paid for the vehicle to be returned after it was
seized by the police. Finally, at trial, Ms. Gascot backtracked from her earlier
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statement to police that Appellant had notified her that someone had stolen
the Infiniti from him around the time of the incident. Instead, she stated that
she did not remember telling police that and she did not know anything about
Appellant driving the Infiniti until the police interviewed her.
Based on these blatant incongruities and her claimed memory lapse, the
Commonwealth attempted to probe further into why she agreed to the title
transfer and whether she did so with the knowledge that Appellant would still
be driving the vehicle. In doing so, the Commonwealth queried whether
Appellant paid her to transfer the title and, if not, why she would agree to it.
This questioning was relevant to her credibility and to Appellant’s state of mind
if he sought to continue to use the Infiniti but distance himself from the
ownership of the vehicle. In other words, he may have wanted to conduct
illegal business with the vehicle and not have it traced to him. Thus, we find
that the questions that led to the objected-to answer were relevant.
Moreover, our review of the certified record reveals that the questions
were not intended to elicit a response about Appellant’s prior incarceration
and Ms. Gascot’s unprompted mention of Appellant’s prior incarceration was
fleeting. Since the testimony was not intentionally elicited by the
Commonwealth and the reference was brief, we conclude that the trial court
did not abuse its discretion in denying Appellant’s motion for a mistrial. See
Commonwealth v. Kerrigan, 920 A.2d 190, 200 (Pa.Super. 2007) (noting
the Commonwealth did not intentionally elicit information as to Kerrigan’s
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incarceration, and based on the testimony, “[a]t most, the jury in this case
could have inferred that Kerrigan was incarcerated at some point in his past
for an unknown crime. This singular, passing reference to a prior conviction
is simply not sufficient to show that the trial court abused its discretion in
denying Kerrigan’s motion for a mistrial.”).
We now turn to the second portion of Appellant’s argument, which
concerns testimony that Appellant sold marijuana. Specifically, the following
exchange occurred between Ms. Gascot and Seng’s attorney during cross-
examination:
Q: Okay. Now, on direct you testified that you met [Appellant]
through a mutual friend. Who was that mutual friend?
A: Patty.
Q: Okay. And under what circumstances that you were
introduced to [Appellant]?
A: He came to our house.
Q: You guys didn’t have any business relationship?
A: No. When you say business, what do you mean?
Q: Purchasing drugs, selling narcotics, anything like that.
A: I’ve seen him selling weed to her.
N.T., 5/17/21-5/20/21, at 139. At that point, Appellant’s counsel objected.
A sidebar conference was held during which Appellant moved for a mistrial
based on counsel asking Ms. Gascot directly about prior bad acts. The trial
court denied the motion without elaboration. Id. at 140. When asked if
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counsel had any other requests, Appellant’s counsel answered negatively and
co-defendant’s counsel continued without further referencing the drug sales.
Id.
Notably, the trial court did not address this motion in its Rule 1925(a)
opinion despite Appellant including it within his concise statement. See Rule
1925(b) Statement, 10/13/21, at unnumbered 2 (“The trial court erred in
denying the motion for mistrial when Commonwealth’s witness referred to
Appellant having been previously incarcerated, violating the pretrial ruling
preventing such statements, and her alluding to [Appellant’s] supposedly
illegal ‘business transactions[.]’”). The Commonwealth similarly neglects to
address the denial of this motion for a mistrial in its brief to this Court, despite
Appellant raising it in the argument section of his brief.
Appellant argues that this line of questioning was irrelevant and in
violation of Pennsylvania Rule of Evidence 404(b). Appellant’s brief at 18.
This rule provides as follows:
(1) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.
(3) Evidence of other crimes, wrongs, or acts proffered under
subsection (b)(2) of this rule may be admitted in a criminal case
only upon a showing that the probative value of the evidence
outweighs its potential for prejudice.
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Pa.R.E. 404(b). Appellant claims Ms. Gascot’s answer was prejudicial because
it informed the jury “that Appellant . . . was known to sell illegal substances,
for which Appellant was currently on trial.” Appellant’s brief at 13.
This line of questioning by co-defendant’s counsel was, in part, related
to Ms. Gascot’s description of Appellant on direct examination as an
“associate.” Thus, it was responsive to the direct examination and relevant
to her relationship with Appellant. However, it is undeniable that counsel
specifically sought to elicit testimony that Appellant participated in illegal drug
trafficking, thereby implying that it was likely that it was Appellant who
possessed the drugs discarded from the Infiniti as opposed to Seng. While
this intentional elicitation of prior bad acts was prejudicial, “its unavoidable
effect [was not] to deprive the appellant of a fair and impartial trial.”
Bennett, supra. In context, the reference to Appellant “selling weed” was
brief, and Appellant was not on trial for PWID marijuana. Given that it was a
single, passing reference to prior criminal activity, we do not find that the trial
court abused its discretion in denying Appellant’s motion for a mistrial. See
Parker, supra at 319 (“A singular [sic], passing reference to prior criminal
activity is usually not sufficient to show that the trial court abused its
discretion in denying the defendant’s motion for a mistrial”).
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/22/2022
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