Com. v. O'Doherty, B.

J-S04028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRIAN J. O’DOHERTY
Appellant No. 903 MDA 2019
Appeal from the Judgment of Sentence May 7, 2019
In the Court of Common Pleas of Schuylkill County
Criminal Division at No: CP-54-CR-0001958-2018
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: JULY 8, 2021
Appellant, Brian J. O’Doherty, appeals from the May 7, 2019 judgment
of sentence imposing four to ten years of incarceration for possession with
intent to deliver (“PWID”) controlled substances1 (heroin, methamphetamine,
and fentanyl), possession of controlled substances,2 conspiracy,3 and related
offenses. Appellate counsel has filed a brief and petition to withdraw in
accordance with Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We vacate
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1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
3 18 Pa.C.S.A. § 903.
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Appellant’s judgment of sentence and remand for further proceedings
consistent with his memorandum and deny counsel’s petition to withdraw.
The charges against Appellant arose from a warrant executed on the
residence of co-defendant Anthony Nelson at 222 South Street, Minersville,
Schuylkill County. Appellant was present alone in Nelson’s residence during
the execution of the warrant. Appellant was smoking a marijuana blunt as
police entered the residence; they recovered it from an ashtray next to where
Appellant was sitting. Also, there was a silver box near Appellant’s feet from
which police recovered the controlled substances that resulted in the PWID
charges. In statements to police and in one court hearing, Nelson claimed
that the substances in the silver box belonged to him. He later recanted,
claiming he took responsibility for the drugs in the silver lockbox only after
Appellant threatened him. At trial, Appellant’s counsel cross-examined Nelson
on his change in testimony and challenged Nelson’s credibility during closing
argument. The jury found Appellant guilty of the aforementioned charges and
the trial court imposed sentence as set forth above. This timely appeal
followed.
On January 22, 2020, this Court remanded for a Grazier4 hearing to
determine whether Appellant wished to proceed pro se or with counsel. At
the February 20, 2020 Grazier hearing Appellant claimed that he asked
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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counsel to supplement the Anders Brief with a claim of newly discovered
evidence. N.T. Hearing, 2/20/20, at 4, 7. Counsel claimed he was unaware
of the newly discovered evidence claim prior to the hearing. Id. at 8. At the
conclusion of the hearing, Appellant informed the court that he did not wish
to proceed pro se. Id. at 11.
Before turning to the merits, we examine counsel’s compliance with
Anders and Santiago. Counsel’s brief must do the following:
(1) provide a summary of the procedural history and facts,
with citations to the record; (2) refer to anything in the record
that counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361. The Anders brief provides a summary of the
procedural history and facts. Anders Brief at 6-8. Likewise, the brief refers
to items—including the lack of direct evidence of Appellant’s awareness of the
controlled substances in the sliver box and the lack of evidence of conspiracy
other than Nelson’s allegedly polluted testimony—that arguably support
Appellant’s appeal. Anders Brief at 5. The body of the Anders Brief
addresses the issues Appellant wished to raise, and counsel’s reasons for
concluding that they are frivolous. In these respects, Counsel’s brief complies
with the dictates of Santiago. However, because of Appellant’s claim of newly
discovered evidence—which counsel has not addressed—we remand for
further proceedings.
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We begin by addressing the issues in counsel’s Anders Brief because
the sufficiency arguments, if successful, would result in an acquittal and
discharge. The remaining issues may repeat themselves in the event of a
retrial. Our standard for reviewing the sufficiency of the evidence is de novo.
Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur scope of
review is limited to considering the evidence of record, and all reasonable
inferences arising therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner.” Id. at 420-21. Unlawful possession of a
controlled substance occurs where the perpetrator knowingly or intentionally
possesses a controlled substance without lawful justification, such as a
prescription. 35 P.S. § 780-133(a)(16). PWID occurs where the perpetrator
possesses a controlled substance with intent to deliver it to another. 35 P.S.
§ 780-113(a)(30).
As noted above, the record read in a light most favorable to the
Commonwealth as verdict winner reflects that one officer saw Appellant
smoking a marijuana blunt when police entered Nelson’s home. A sliver box
near Appellant’s feet contained heroin, methamphetamine, and fentanyl.
Nelson testified that the silver box belonged to Appellant, and that Appellant
gave Nelson drugs to sell to others.
In his pro se response to counsel’s Anders brief, Appellant claims the
evidence is insufficient because Nelson lacked credibility in testifying that the
drugs in the silver box belonged to Appellant. Nelson acknowledged lying
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under oath in a previous proceeding in which he claimed all the drugs were
his. N.T. Trial, 4/4/19, at 82-83. In any event, credibility goes to the weight,
not sufficiency, of the evidence. Commonwealth v. Gibbs, 981 A.2d 274,
281-82 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). Appellant
did not preserve a weight of the evidence challenge before sentencing or in a
post-sentence motion. See Pa.R.Crim.P. 607(A). Given the facts of record,
we agree with counsel’s conclusion that a challenge to the sufficiency of the
evidence is frivolous.
Next, the Anders Brief addresses the sufficiency of the evidence in
support of Appellant’s conspiracy conviction. Once again, Appellant’s
argument rests on the credibility of Nelson—Appellant wishes to argue that
there was no evidence of a conspiracy other than Nelson’s polluted testimony.
The record reveals that the trial court gave the jury a polluted source
instruction. N.T. Trial, 4/4/09, at 158; see Commonwealth v. Chmiel, 639
A.2d 9, 13 (Pa. 1994) (“It is well established that in any case were an
accomplice implicates the defendant, the judge should tell the jury the
accomplice is a corrupt and polluted source whose testimony should be viewed
with great caution.”). The jury evidently found Nelson credible, despite the
polluted source instruction and despite his acknowledgement on the witness
stand that he previously lied under oath about the facts of this case. Contrary
to Appellant’s argument, the Commonwealth did not need to produce
independent evidence to procure a conviction. See Commonwealth v.
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Bricker, 581 A.2d 147, 150 n.5 (Pa. 1990) (quoting standard Pennsylvania
jury instructions, which provide that a jury may convict based on an
accomplice’s testimony even if no independent evidence supports the
testimony). We likewise find this issue to be frivolous.
Next, the Anders brief addresses Appellant’s argument that the
prosecutor improperly vouched for Nelson’s credibility during closing
argument.
It is axiomatic that vouching is a form of prosecutorial
misconduct, occurring when a prosecutor places the government’s
prestige behind a witness through personal assurances as to the
witness’s truthfulness, and when it suggests that information not
before the jury supports the witness’s testimony. Improper
bolstering or vouching for a government witness occurs where the
prosecutor assures the jury that the witness is credible, and such
assurance is based on either the prosecutor’s personal knowledge
or other information not contained in the record.
Commonwealth v. Johnson, 179 A.3d 1105, 1121 (2018) (internal citations
and quotation marks omitted), appeal denied, 197 A.3d 1174 (Pa. 2018).
Appellate Counsel was unable to find any portion of the closing argument in
which the prosecutor did so, and neither can we. In his pro se response,
Appellant does not identify anywhere in the record in which the prosecutor
improperly vouched for Nelson’s credibility. Rather, the prosecutor in his
closing responded to defense counsel’s attacks on credibility but did not vouch
for Nelson’s credibility. The prosecutor based his arguments on evidence that
was before the jury. Once again, we find this issue to be frivolous.
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Appellant also wishes to argue that counsel was ineffective for
stipulating to the admissibility of the report documenting the amount of
controlled substances recovered during execution of the warrant. Subject to
limited exceptions not presently applicable, this issue must await collateral
review. Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).
Finally, Appellant wishes to argue that the search warrant was
insufficiently specific. The record reveals that the warrant specified the
premises to be searched as 222 South Street, Minersville, Schuylkill County,
Pennsylvania, and the persons to be searched as Nelson and “others yet
unknown.” Search Warrant, 5/29/18. The applicable law is as follows:
[W]e restate the law under Article I, Section 8 as follows:
where a search warrant adequately describes the place to be
searched and the items to be seized the scope of the search
extends to the entire area in which the object of the search may
be found[.] Therefore, so long as police have reason to believe
the specific items to be seized may be found throughout a single
family residence, Article I, Section 8 does not preclude a search
of the entire residence regardless of whether a particular
individual not named in the warrant has an expectation of privacy
in certain areas of that residence.
Commonwealth v. Turpin, 216 A.3d 1055, 1069 (Pa. 2019) (internal
citations and quotation marks omitted). Counsel attached the warrant as an
exhibit to the Anders Brief, but the exhibit lacks the affidavit of probable
cause. The warrant refers to the affidavit for a list of items to be searched.
We have been unable to locate the original warrant and affidavit in the certified
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record. We are therefore unable to assess the merit, if any, of this argument.5
On remand, we direct counsel to ensure the completeness of the record and
to examine this issue further.
We now turn to Appellant’s pro se response to counsel’s Anders Brief.
In it, Appellant argues that he informed counsel of new evidence that
Appellant discovered several weeks after trial. The evidence involved a prison
corrections officer, “C.O. Oliver.”6 According to Nelson’s trial testimony,
Oliver, a corrections officer inside the jail, informed Nelson that Appellant “put
out a hit” on him. N.T. Trial, 4/4/19, at 83. Nelson claimed that Appellant
threatened Nelson’s life on two occasions, once at gunpoint while both were
out on bail, and once through Oliver. Id. at 97, 100; Defendant’s Trial Exhibit
2. Nelson first divulged this information by letter to police. In pertinent part,
the letter provides:
The only reason that I testified that all the drugs were mine
is because I was in fear of my life. [M]e and my celly were getting
meds when C.O. Oliver7 told me [Appellant] said he will put a hit
out on me if I don’t kick that bitch out of my house. Lisa Colna is
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5 Appellant seemingly challenges both the particularity of the warrant and the
search of his person incident to arrest (one officer testified that Appellant was
smoking a marijuana blunt as police entered Nelson’s home to execute the
warrant). We leave it to counsel to clarify the issue on remand.
6 This person is referred to in the record variously as “C.O. Oliver” and “C.O.
Olivet.” For consistency, we use “Oliver”.
7 The letter “r” at the end of Oliver’s name in Nelson’s handwritten letter can
be read either as an “r” or a “t.” This appears to be the reason for the confusion
in the record over Oliver’s surname.
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who he was talking about because she witnessed [Appellant]
threaten me with the gun.
Defendant’s Trial Exhibit 2. During closing argument, defense counsel
criticized the Commonwealth for not calling Oliver to corroborate Nelson’s
testimony, and for not calling Lisa Colna to testify that she saw Appellant
threaten Nelson with a gun. N.T. Trial, 4/4/19, at 138.
Appellant claims Oliver approached him after trial and told him of an
interview with the district attorney in which Oliver denied that Appellant
conveyed to Oliver a threat toward Nelson. Oliver also denied conveying any
such threat to Nelson.
As noted above, Appellant raised this issue in the Grazier hearing on
remand from this Court:
THE COURT: What’s the basis of any claim of a Brady
violation?
THE DEFENDANT: Your Honor, I have it here in the copy of
this letter. The District Attorney’s Office contacted a witness to
corroborate Anthony Nelson’s statement; namely, a corrections
officer before trial. And the officer did not corroborate, told him
that this never happened.
The District Attorney’s Office never told my lawyer nor
myself about it, which is exculpatory evidence. They never
released any of this information to me. I have it right here in this
letter with the receipt. It states right here plainly that I sent it to
this lawyer. He never contacted this corrections officer, never
even –
THE COURT: How did you find out about this?
THE DEFENDANT: The correction officer actually told me
about it when – after trial. He said, why didn’t your lawyer call
me? I said, Call you for what? He said, the DA’s officer called me.
I said, why did the DA’s office call you? And he said, They just
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called me a couple of days ago and asked me about this letter or
something, called me and asked me about something. And I was
like, I don’t know. And I’ve been mentioning it ever since, and
nobody wants to bring it up.
THE COURT: How long after trial did you find this
information out?
THE DEFENDANT: Probably, -- it had to have been maybe
a couple weeks after. It was a couple weeks after. And I wrote
to [trial counsel]. I mentioned it to [trial counsel]. Like I said – I
have it here, Your Honor, in this letter that I sent to him. And
nothing.
[Appellate Counsel]: Your Honor, I’m looking at this letter
now for the first time next to me. I don’t recall anything like that
whatsoever.
N.T. Hearing, 2/20/20, at 7-8.
Appellant refers to this issue variously as a Brady8 claim (based on the
prosecutions failure to disclose the interview with Oliver) and a claim of newly
discovered evidence (based on Appellant’s allegation of what Oliver told him
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8 The elements of a claim pursuant to Brady v. Maryland, 373 U.S. 83(1963), are as follows:
To establish a Brady violation, a defendant must show: the
prosecution suppressed the evidence, either willfully or
inadvertently; the evidence is favorable to the defense; and the
evidence is material. [E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. The mere possibility that an item of undisclosed
information might have helped the defense, or might have
affected the outcome of the trial, does not establish materiality in
the constitutional sense.
Commonwealth v. Birdsong, 24 A.3d 319, 327 (Pa. 2011) (internal
citations and quotation marks omitted).
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after trial). In substance Appellant argues it as the latter, and we will analyze
it as such. Appellant cites Commonwealth v. Rivera, 939 A.2d 355 (Pa.
Super. 2007), in which the Commonwealth’s lab technician (who testified as
to the amount of drugs involved in the defendant’s case) was exposed as
corrupt in a newspaper article published while the defendant’s case was on
appeal. This Court cited Criminal Procedure Rule 720(C): “A post-sentence
motion for a new trial on the ground of after-discovered evidence must be
filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C). The
official comment to Rule 720(C)
Unlike ineffective counsel claims, which are the subject of
Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002),
paragraph (C) requires that any claim of after-discovered
evidence must be raised promptly after its discovery. Accordingly,
after-discovered evidence discovered during the post-sentence
stage must be raised promptly with the trial judge at the post-
sentence stage; after-discovered evidence discovered during
the direct appeal process must be raised promptly during
the direct appeal process, and should include a request for
a remand to the trial judge; and after-discovered evidence
discovered after completion of the direct appeal process should be
raised in the context of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii)
and (b)(2) (PCRA petition raising after-discovered evidence must
be filed within 60 days of date claim could have been presented).
Commonwealth v. Kohan, 825 A.2d 702 (Pa. Super. 2003), is
superseded by the 2005 amendments to paragraphs (A) and (C)
of the rule.
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Pa. R. Crim. P. 720, comment (emphasis added). Relying on the official
comment, the Rivera Court recited the test for after-discovered evidence9
and remanded for a hearing on the defendant’s after-discovered evidence
claim. Rivera, 939 A.2d at 359. The Rivera Court reasoned that the trial
court should address the issue in the first instance.
We will follow the Rivera Court’s lead in this case, remanding for the
trial court to analyze Appellant’s claim under the test for newly discovered
evidence. We are cognizant that C.O. Oliver was identified during trial, and
that defense counsel criticized the prosecution for not producing him as a
witness. It is unclear what, if anything, prevented defense counsel from
calling Oliver as a witness at trial. We leave it to the parties and the trial court
to address this issue on remand.
For all the foregoing reasons, Appellant’s judgment of sentence is
vacated and this matter is remanded for an evidentiary hearing consistent
with this Memorandum in order to determine if a new trial is required based
upon either after-discovered evidence or a defective search warrant, and, if
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9 The test is as follows:
To warrant relief, after-discovered evidence must meet a
four-prong test: (1) the evidence could not have been obtained
before the conclusion of the trial by reasonable diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the
evidence will not be used solely for purposes of impeachment; and
(4) the evidence is of such a nature and character that a different
outcome is likely.
Rivera, 939 A.2d at 359.
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not, for the re-imposition of sentence. Counsel’s application to withdraw is
denied.
Judgment of sentence vacated, case remanded, petition to withdraw as
counsel denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/08/2021
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