June 12, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
JAMES NEWMAN, Appellant
Appeal from the Judgment of Sentence of June 13, 2012, in the Court of Common Pleas of Montgomery County, Criminal Division at No. CP-46-CR-0000068-2011
BEFORE: STEVENS, P.J., LAZARUS and COLVILLE, [*] JJ.
This case is a direct appeal from the judgment of sentence imposed on Appellant after a jury convicted him of numerous counts of drug-related offenses, including possession with intent to deliver a controlled substance ("PWID"), possession of a controlled substance, possession of drug paraphernalia, and conspiracy. Appellant contends the trial court erred by allowing the Commonwealth to introduce evidence of prior bad acts and certain expert testimony. He also argues the court erred in sentencing him to a mandatory minimum term of incarceration under 42 Pa.C.S.A. § 9712.1 (setting forth mandatory terms for drug offenses committed with firearms). We affirm the judgment of sentence.
The record reveals the following facts. On December 7, 2010, Appellant sold crack cocaine to a police informant in the parking lot of Station Avenue apartment complex. Appellant then entered Apartment 2 of that complex. Police had seen him exit the apartment at some earlier point on that day. Police secured a warrant to search the apartment.
On December 10, 2010, as officers approached the residence to execute the warrant, Appellant exited the apartment. Upon seeing police, Appellant ran back toward the apartment and tried to re-enter it, banging on the door and yelling, but police apprehended him. They found that he possessed $773.00 in cash, a razor blade and ten bags of crack cocaine. At trial, expert testimony from the Commonwealth would indicate the items found on Appellant indicated he had the intent to deliver cocaine.
Upon entering the residence, police found multiple people, including Manuel and Rafiq Newman, the two persons with whom Appellant was eventually convicted of conspiring. In a bedroom, under a mattress, police located a gun and bullets. Also in that bedroom, officers found empty baggies, mail to Rafiq Newman, and three digital scales. Approximately six to eight feet away from the bedroom, in bathroom across a hall, there was a bag containing 61.26 grams of cocaine. The Commonwealth's expert would later testify that the cocaine, bags and scales revealed an intent to deliver drugs.
Trial testimony from Appellant's mother revealed that, although Appellant did not live at the subject residence, he was there daily. His mother indicated she knew him to enter the bedroom in question for periods of twenty minutes or half an hour. While at the residence, Appellant would take phone calls lasting two to three minutes, leave the home for periods of fifteen to twenty minutes and then return.
After a jury convicted Appellant of the instant offenses, the court sentenced him. Appellant's aggregate sentence was not less than five and not more than ten years' incarceration. That penalty included a mandatory minimum term of five years' imprisonment under 42 Pa.C.S.A. § 9712.1. Appellant later filed this appeal.
Appellant's first issue is that the court erred in admitting evidence that he sold crack cocaine to the police informant on December 7, 2010. While the criminal charges against Appellant in the present case alleged that he committed drug offenses in and near the residence on December 10, 2010, the December 7th incident was apparently admitted by the court to show Appellant's intent on the 10th. In support of his issue, Appellant's theory is that the trial court failed to engage in the balancing test required by Pa.R.A.P. 404(b)(3) for the admission of prior-acts evidence. He also advances the related theory that applying the balancing test would lead to the conclusion that the probative value of the evidence did not outweigh its potential for prejudice. See id. He concludes the admission of the evidence was error.
Appellant does not demonstrate that he preserved his issue and/or his supporting theory(ies) in the lower court. As such, he has waived his claims. Commonwealth v. Rush, 959 A.2d 945, 949-50 (Pa. Super. 2008); Pa.R.A.P. 2117(c), 2119(e).
In his next issue, Appellant contends the trial court erred by allowing the Commonwealth to present the expert testimony tending to show Appellant possessed the cocaine with the intent to deliver. Appellant argues that, prior to trial, he requested discovery under Pa.R.Crim.P. 573(B)(1)(e) by asking the Commonwealth for any expert opinions it possessed. He acknowledges that the Commonwealth responded by letter dated November 21, 2011, in which the Commonwealth indicated, inter alia, that Detective Echevarria of the narcotics division of the Montgomery County Detective Bureau would provide expert testimony at trial regarding PWID and drug trafficking. However, Appellant maintains the letter was not sufficient to satisfy the Commonwealth's duty under Rule 573(B)(1)(e) to disclose Echevarria's expert opinion. Essentially, Appellant is claiming the letter did not provide him with adequate notice about what Echevarria's testimony would be. As such, Appellant maintains that the trial court should not have admitted Echevarria's testimony and that we should grant Appellant a new trial.
Decisions regarding the admission of evidence are within the discretion of the trial court, and we will not disturb such decisions absent an abuse of discretion. Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa. Super. 2007). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011).
The Commonwealth's aforesaid letter notified Appellant that the Commonwealth would be presenting expert testimony from a narcotics detective, Echevarria, regarding PWID. Appellant knew what the letter said when he received it. If he believed the letter did not adequately disclose the subject matter, factual substance, opinion, and/or supporting grounds to which Echevarria would testify, Appellant could have filed a motion for preparation and disclosure of a formal expert report. Pa.R.Crim.P. 573(B)(2)(b). He did not do so.
Given these facts—particularly Appellant's failure to move for a report after being notified that the Commonwealth would offer Echevarria's expert testimony—Appellant has not convinced us the trial court's decision to admit that testimony constituted some type of bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of the law. Having not demonstrated the court abused its discretion, Appellant has not given us cause to disturb the court's ruling. Therefore, he is not entitled to relief.
In his third issue, Appellant complains the court erred in applying the mandatory minimum incarceration term under 42 Pa.C.S.A. § 9712.1. In pertinent part, the relevant sentencing provisions are:
(a) Mandatory sentence.--Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972 (P.L. 233, No. 64), . . . known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.
(c)Proof at sentencing.--Provisions of this section shall not be an element of the crime . . .. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(d) Authority of court in sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence.
42 Pa.C.S.A. § 9712.1(a), (c), (d) (footnote omitted).
Constructive possession is the ability to exercise conscious control or dominion over an item and the intent to exercise that control. Commonwealth v. Person, 39 A.3d 302, 305 (Pa. Super. 2012). The intent to exercise conscious dominion can be inferred from the totality of the circumstances. Id.
Generally, a challenge to the applicability of a mandatory sentence is a challenge to the legality of the sentence. Id. Our standard of review is de novo. Id.
The evidence we discussed supra is sufficient to show by a preponderance of the evidence that Appellant, as part of his role in completing drug sales in the subject conspiracy, had been in the bedroom that was inside the apartment—the bedroom containing the gun, the bedroom containing drug-sale paraphernalia, the bedroom located just six to eight feet from more than 60 grams of crack. All of these facts lead to the inference that Appellant had access to, and the ability to control, the firearm. Moreover, the totality of the circumstances supports the inference that he intended to exercise control over that firearm just as he intended to possess and deliver the cocaine that was in the residence. Because the facts demonstrate that Appellant had constructive possession of the gun and that the gun was in close proximity to the drugs, see Commonwealth v. McKibben, 977 A.2d 1188, 1194 (Pa. Super. 2009) (finding gun located six to eight feet from drugs was in close proximity to drugs for purposes of Section 9712.1), the court had no legal authority to impose a sentence less than the mandatory minimum term dictated by Section 9712.1. Appellant's claim to the contrary fails.
Based on the foregoing discussion, we affirm the judgment of sentence.
Judgment of sentence affirmed.