Com. v. Fleming, M.

J-S60036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL BRAN FLEMING :
:
Appellant : No. 608 MDA 2019
Appeal from the Judgment of Sentence Entered December 7, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001537-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 26, 2019
Michael Bran Fleming (Fleming) appeals from the judgment of sentence
entered on December 7, 2018, by the Court of Common Pleas of Berks County
(trial court) following his convictions for one count of possession with intent
to deliver and two counts of possession of a controlled substance. 1 Fleming
contends that the trial court erred by denying his motion in limine to introduce
a third-party’s statements against interest at trial.2 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (a)(16).
2 We review a trial court’s ruling on the admission or exclusion of evidence for
an abuse of discretion. Commonwealth v. Benson, 10 A.3d 1268, 1274
(Pa. Super. 2010). “[A]n abuse of discretion will be found if the trial court’s
judgment was manifestly unreasonable or the result of partiality, prejudice,
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On December 9, 2016, Fleming was the front-seat passenger in a vehicle
that was pulled over for speeding in Robeson Township. (Notes of Testimony
(N.T.), 11/13/18 – 11/14/18, at 72, 74). The driver of the vehicle was Darius
Linton (Linton) and a third individual was in the back seat. (N.T. at 73-74).
Officer Brandon Breitenstein determined that both Fleming and Linton had
outstanding warrants and they were removed from the vehicle. (N.T. at 75-
77). When Fleming exited the vehicle, Officer Breitenstein saw a bag of
cocaine on the seat where Fleming had been sitting. (N.T. at 77, 135-36).
He also observed an odor of unburnt marijuana when he approached Fleming’s
seat and spoke with him. (N.T. at 80-81).
Fleming initially denied having any narcotics on his person, but soon
admitted to having more drugs in his pants. (N.T. at 81-82, 84). Fleming
removed a bag containing 13 small bags of cocaine or crack cocaine, two bags
of methamphetamine, and a bag of marijuana from his boxers. (N.T. at 84-
86, 136-37). A small bag of marijuana was also recovered between the
passenger seat and door of the vehicle. (N.T. at 87, 94). Officer Breitenstein
then searched the vehicle and found baking soda and a measuring cup in the
trunk. (N.T. at 89-90). The other occupants of the vehicle did not have any
drugs or paraphernalia on their persons. (N.T. at 77, 88, 118-19).
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bias, or ill will as shown by the evidence of record.” Id. (internal quotations
and citation omitted).
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Fleming filed a motion in limine prior to trial seeking to introduce
statements allegedly made by Linton implicating himself in the possession of
the narcotics. See Motion in Limine at 5. He argued that Linton’s statements
were reliable because Linton was driving the vehicle, had the car key, and
would have had better access to the trunk where the alleged paraphernalia
was found.3 (N.T. at 6, 11-12). Fleming also argued that Linton had multiple
prior convictions for drug-related offenses and was a more sophisticated
criminal than Fleming. (N.T. at 8, 177-78). The Commonwealth argued that
Linton’s statements to arresting officers had sufficient indicia of reliability to
be admitted, but the statements allegedly made to Fleming and his brother
lacked reliability and trustworthiness. (N.T. at 183-84). The trial court denied
the motion in limine and Fleming was subsequently convicted of the above-
mentioned offenses.4 (N.T. at 185, 253-54).
It is not entirely clear from the record what alleged incriminating
statements Fleming sought to introduce at trial. While Fleming argued
repeatedly that Linton had made statements to Officer Breitenstein at the time
of the arrest, to Fleming himself, and to Fleming’s brother, indicating that all
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3 Fleming was found not guilty of one count of Possession of Drug
Paraphernalia, 35 P.S. §§ 780-113(a)(32). (N.T. at 253).
4 Fleming filed a timely notice of appeal following the denial of his post-
sentence motion, and both Fleming and the trial court have complied with
Pennsylvania Rule of Appellate Procedure 1925.
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the narcotics found during the stop belonged to him, he never made a specific
offer of proof presenting the substance of those statements to the trial court
for its consideration.5 However, we glean from the record that Linton told
Officer Breitenstein during the arrest that Fleming might have narcotics.6
(N.T. at 102). He also allegedly spoke to Fleming while they were waiting to
see the magisterial district judge and urged him to admit to possessing the
drugs. (N.T. at 10, 177-78, 184). The record does not reflect the content of
the statements Linton allegedly made to Fleming’s brother or the
circumstances under which he allegedly made them. (N.T. at 10).
A statement may be admitted under the hearsay exception for
statements against interest if the declarant is unavailable as a witness 7 and
the proponent of the statement establishes that:
(A) a reasonable person in the declarant’s position would have
made [the statement] only if the person believed it to be true
because, when made, it was so contrary to the declarant’s
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5 Fleming’s counsel repeatedly referenced statements to Officer Breitenstein
that were in his police report, but this police report was not entered as an
exhibit at the hearing on the motion in limine.
6 Even though the trial court ruled that all of Linton’s alleged statements were
inadmissible, counsel for Fleming and the Commonwealth questioned Officer
Breitenstein regarding this statement at trial. (N.T. at 102-03, 112-13).
Thus, to the extent that Fleming argues that the trial court erred in excluding
this statement from trial, the issue is moot.
7 Linton had a number of outstanding arrest warrants at the time of Fleming’s
trial, and the Commonwealth and Fleming agreed that Linton was unavailable
under the Rule. (N.T. at 7, 179, 181).
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proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone else or to expose
the declarant to civil or criminal liability; and
(B) [the statement] is supported by corroborating circumstances
that clearly indicate its trustworthiness, if it is offered in a criminal
case as one that tends to expose the declarant to criminal liability.
Pa. R.E. 804(b)(3). In Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012),
our Supreme Court held that statements made directly to homicide detectives
in a Mirandized,8 videotaped confession had sufficient indicia of reliability to
be admissible as statements against penal interest. Id. at 1177. In that case,
a codefendant gave a lengthy confession providing many specific details of a
shooting, describing the drug operation for which he and his brothers worked,
and claiming that the defendant had taken no part in the shooting. Id.Because the statements were so detailed and exposed the codefendant to
significant criminal liability, they were sufficiently reliable to be admissible in
the defendant’s trial. Id. at 1177-78.
Regarding Linton’s statements allegedly made directly to Fleming,
Fleming’s counsel asserted during argument on the motion in limine that
Fleming and Linton had a discussion soon after their arrests. After they were
taken into custody on outstanding warrants at the traffic stop, they sat
together while waiting to appear in front of the magisterial district judge. (N.T.
at 10, 177-78, 184). At that time, Linton allegedly urged Fleming to say that
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8 Miranda v. Arizona, 384 U.S. 436 (1966).
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all the drugs in the vehicle belonged to him. Id. Linton told Fleming that if
he admitted to possessing the narcotics, he would be sentenced to boot camp,
as that was the sentence Linton had received for a similar conviction in the
past. (N.T. at 177-78). Fleming’s counsel sought to have Fleming testify
regarding this conversation.
The trial court did not abuse its discretion in determining that this
alleged interaction lacked the indicia of reliability necessary to render the
statements admissible, as the brief conversation carries none of the indicia of
reliability required by the Rule. These statements were allegedly made
directly to Fleming, who had a significant interest in the statements’ admission
at trial. Linton was not speaking to someone with any authority over who
would be charged with possession of the drugs found in the vehicle, and he
did not expose himself to criminal liability by making a statement to Fleming.
Further, Linton was not the registered owner of the vehicle and no drugs or
paraphernalia were recovered from his person. (N.T. at 77, 96). The drugs
recovered in the vehicle were found directly on Fleming’s body, on the seat
where Fleming had been sitting, and between Fleming’s seat and the door.
(N.T. at 77-78, 83-84, 87, 94). None of these circumstances suggests that
Linton’s alleged statements were truthful, and the trial court did not abuse its
discretion in excluding them from trial.
As to the statements allegedly made to Fleming’s brother, Fleming did
not present any evidence or even an offer of proof regarding the
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circumstances under which the statements were made. (N.T. at 10). It is not
clear when the statements were made, how much time had passed between
the incident and Linton’s alleged statement, what specifically Linton said, or
where he made the statement. As a result, the trial court was unable to assess
the totality of the circumstances surrounding Linton’s statements to determine
if they presented sufficient indicia of reliability. In absence of any evidence of
reliability, the trial court did not abuse its discretion in excluding these
statements from trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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