November 12, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellant
LLOYD ABDUL WILSON, Appellee COMMONWEALTH OF PENNSYLVANIA, Appellant
LESLIE KELSEY, Appellee
Appeal from the Order Entered March 12, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002004-2009, CP-51-CR-0007083-2009
BEFORE: BOWES, OTT, and STRASSBURGER, [*] JJ.
The Commonwealth appeals from the March 12, 2012 order precluding it from presenting the testimony of an expert witness at the joint trial of Appellees Lloyd Abdul Wilson and Leslie Kelsey. We reverse and remand.
Appellee Wilson was charged with two counts of possession of a controlled substance with intent to deliver ("PWID")—one relating to crack cocaine and the other pertaining to oxycodone. In addition, he was charged with one count each of conspiracy, obliterating the manufacturer's number on a firearm, and possession of: 1) a controlled substance; 2) drug paraphernalia; 3) a firearm by a prohibited person; and 4) a firearm with an obliterated or altered manufacturer's number. Appellee Kelsey was charged with two counts of PWID—one relating to crack cocaine and the other pertaining to oxycodone, and one count each of conspiracy, possession of a firearm by a prohibited person, possession of a controlled substance, possession of drug paraphernalia, and possession of an instrument of crime.
The charges were brought based upon the following events. On the evening of September 16, 2008, Philadelphia Police Officers Myra Hawkins and Patricia Hodge met with a confidential informant who told them that the occupants of 2736 West Oakdale Street, Philadelphia, were selling drugs from that location. At 9:00 p.m., a controlled buy was conducted at that address. Officers Hawkins and Hodge observed the CI approach and knock on the window of 2736 West Oakdale Street. Appellee Kelsey opened the door, the CI entered the location and exited it two minutes later, and the CI returned to the two officers. The CI did not have the controlled-buy money but was in possession of cocaine in blue-tinted baggies.
On the evening of October 14, 2008, another controlled buy was performed at the same location with the same CI. On that occasion, Officers Hawkins and Hodge observed the CI knock on the door, converse with Appellee Kelsey at that location, Appellee Kelsey entered and exited 2736 West Oakdale Street, and Appellee Kelsey handed objects to the CI. Those objects, which were handed over to the police officers, were blue-tinted packets of cocaine. Between 6:00 and 8:00 p.m. on October 15, 2008, the CI engaged in a third controlled buy at the same address. This time,
Appellee Wilson opened the door, spoke with the CI, accepted the buy money, entered and exited 2736 West Oakdale Street, and handed the CI blue-tinted packets containing cocaine.
Police executed a warrant at 2736 West Oakdale Street at 8:00 p.m. on October 15, 2008. Appellees were inside, identified by Police Officers Hawkins and Hodge, and arrested. Appellee Wilson was in possession of twenty dollars of the controlled buy-money and other cash while Appellee Kelsey had cash and marijuana on his person. At 2736 West Oakdale
Street, police also uncovered more cocaine in blue-tinted packages as well as marijuana, six Xanex pills and pills that were partially composed of either hydrocodone or oxycodone. Police also discovered a large amount of cash and two loaded firearms.
Appellees originally were slated to be tried together. However, on February 15, 2012, Appellee Kelsey was not brought to Philadelphia County from the State Correctional Institution in Graterford, and the court entered an order severing the two cases. Trial commenced against Appellee Wilson on February 16, 2012. At that time, the Commonwealth indicated that it planned to call an expert witness, Philadelphia Police Officer Kevin Keys, to opine that the twelve oxycodone pills discovered inside 2736 West Oakdale Street were possessed with intent to deliver. It noted that, while it had evidence of delivery in connection with the cocaine, without expert testimony, it had no proof that the oxycodone pills were possessed with intent to deliver. Appellee objected because he was not given a copy of a report by the expert witness prior to trial and "could not adequately cross-examine this witness as to substances that were found in the house." N.T. Trial, 2/16/12, at 17. Appellee Wilson also claimed that he might be able to obtain an expert witness to counter Officer Keys' testimony. Id. at 31.
Initially, the trial court indicated that it would not permit the Commonwealth to call Officer Keys. Id. at 20-21. The Commonwealth responded that it was going to file an interlocutory appeal from that ruling. After some discussion of whether the Commonwealth could file an appeal under the circumstances, the trial court inquired about the status of Appellee Kelsey's case, which was listed for a status conference that same week. The court, in order to avoid a delay, reversed its exclusionary ruling, joined Appellees' cases, and accorded the Commonwealth fifteen days to prepare a written report regarding the proposed testimony of Officer Keys. N.T. Motion, 2/16/12, at 46-47, 72. At that point, Appellee Wilson moved for production of a report from Officer Keys as to his proposed opinion testimony.
At a hearing conducted on March 12, 2012, counsel for both Appellees appeared, and they sought to prevent Officer Keys' testimony on the ground that the expert report disseminated to them failed to meet the requirements of Pa.R.Crim.P. 573(B)(2)(b), which pertains to discretionary disclosure of Commonwealth evidence, and provides that:
(b) If an expert whom the attorney for the Commonwealth intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.
In the present case, the Commonwealth gave Appellees a document that appeared on letterhead from the district attorney's office and stated:
Pursuant to Pennsylvania Rule of Criminal Procedure 573 (B)(2)(b), the Commonwealth has been ordered to provide an expert report in the above captioned cases. Rule 573 states that upon an order, the Commonwealth must prepare a report stating: (1) the subject matter on which the expert is expected to testify; (2) the substance of the facts to which the expert is expected to testify; and (3) a summary of the expert's opinions and the grounds for each opinion.
(1)The subject matter on which the expert is expected to testify:
The Commonwealth intends to call for trial Philadelphia Police Officer Kevin Keys as an expert in how narcotics are packaged and sold in Philadelphia. Officer Keys is expected to testify on the subject matter of narcotics packaging and distribution.
(2) The substance of the facts to which the expert is expected to testify:
Police Officer Keys will not be testifying as a fact witness. The facts of the case will be presented by the surveillance and investigating officers from the Narcotic Field Unit: Myra Hawkins, Regino Fernandez, and Thomas Clarke. The facts Officer Keys will rely on are fully contained within the police documentation provided to defense counsel.
(3) A summary of the expert's opinions and the grounds for each opinion:
Police Officer Keys will be testifying that he believes the narcotics possessed within 2736 West West Oakdale Street on October 15, 2008 were possessed with the intent to deliver. That opinion is based upon the following factors:
a. That the type of pills in this case are consistent with the pills that are diverted from their medical use and converted into illicit street sales: 63 Hydrocodone/acetaminophen (trade name Vicodin); 6 alprazolam (trade name xanax); and 12 oxycodone/ acetaminophen (trade name Percocet).
b.The variety of different pills and the amounts.
c. The container the pills were found in: a pill bottle with the label scratched off (63 Vicodin) and a clear Cruzan Banana Rum bottle (12 Perocets, 6 xanaxs).
d. Pills were confiscated from the same area where crack cocaine was recovered.
e.The amount of United States currency in the same room as the narcotics.
Appellee Wilson argued that the report failed to comply with Pa.R.Crim.P. 573 since it was not authored by Officer Keys. The Commonwealth responded that the rule did not prohibit preparation of the report on the district attorney's letterhead and did not mandate that the report be typed by the expert himself. The assistant district attorney explained that "each opinion of the expert was written by the expert on this handwritten document that I'll be happy to mark C-2. . . Your Honor, it is the expert's handwritten notes and I typed them up." N.T. Hearing, 3/12/12, at 6. The prosecutor continued that, "if Your Honor is asking that it be signed and dated, I will have no problem calling the officer to sign the document in front of Your Honor as an official statement I typed up and he hand wrote." Id. She additionally observed that the Commonwealth was not "ambushing the defense, there's just no signature and it's not dated. They know all of the reasons for which the Commonwealth's witness will be used at trial. Therefore, it is not a faulty document." Id.
At that point the court ruled, "The Commonwealth is precluded from calling an expert witness." Id. at 9. The prosecutor asked, "I'm sorry, what's the basis of the decision just for the record?" Id. The trial court responded, "I don't have to give you reasons." Id. At that point, the Commonwealth stated that it would file the present appeal, as the ruling prevented it from proving the charge of PWID-oxycodone.
While the trial court refused to offer a legal basis for its ruling at the time of suppression, in its Pa.R.A.P. 1925(b), the trial court outlined two reasons for its decision. It first indicated that Rule 573(B)(d)(b) "denotes that the expert witness and the prosecutor have separate and distinct duties — the expert prepares the opinion in accordance with the rule and the prosecutor submits the report to the court. In reviewing the expert report . . . there is no evidence that the expert witness drafted or even reviewed the report." Trial Court Opinion, 7/17/12, at 2-3 (emphasis in original). It next stated:
Secondly, the use of an expert witness was not necessary in this case. The use of an expert is the "final factor, " among many, to consider in a case involving PWID. Commonwealth v. Taylor, 33 A.d 1283 (Pa.Super. 2011). The trial court questioned the prosecutor extensively on how the Commonwealth's case would be hindered by prohibiting the expert testimony as to the charge to possession with intent to distribute. The prosecutor agreed that the court ruling would not impair the ability to prosecute the drug sale of cocaine, but the that the ruling would impair her ability to prosecute the drug sale of the oxycodone, even though the prosecutor stated that there were allegations of multiple "buys" that occurred in this case through the use of a confidential informant.
In addition, the jury could more than likely conclude that the possession of twelve (12) pills of oxycodone would constitute the sale of drugs, considering the other charges against the defendant. See, Commonwealth v. Watson, 945 A.2d 174 (Pa.Super. 2008) (while expert testimony is admissible to determine the difference between sale and personal use of drugs, expert testimony is inadmissible if the jury can easily comprehend that the drugs recovered were possessed with the intent to deliver without the assistance of an expert). Even more importantly, "when the expert testimony corroborates a drug transaction, which is obvious to the average layperson, it invites the trier of fact to abdicate its responsibility and defer to the assessment of the expert." Id.
Id. at 3-4.
In this appeal, the Commonwealth maintains that both reasons for the ruling in question were improper:
I. Did the trial court err in excluding the expert testimony of Officer Kevin Keys based on a supposed violation of Rule 573(B)(2)(b), where the officer's expert report complied with the discovery rule, and any theoretical violation did not prejudice defendants?
II.Was Officer Keys' expert testimony admissible pursuant to Pa.R.E. 702, where the testimony involves specialized knowledge beyond the ken of the average layperson and will assist the jury in determining a fact in issue?
Commonwealth's brief at 9.
In order to properly analyze the merits of this appeal, we must make some preliminary observations. First, the trial court's initial ruling on February 16, 2010, which it later reversed, was that the Commonwealth could not present the testimony of Officer Keys. This ruling was in error. The Commonwealth was not required to inform Appellee Wilson prior to trial that it intended to call an expert witness. Pa.R.Crim.P. 573(B)(1) outlines mandatory disclosure by the Commonwealth, and mandatory discovery includes exculpatory evidence, the substance of any inculpatory statements by the defendant, the defendant's prior criminal record, the circumstances surrounding any identification of the defendant, tangible evidence against the defendant, and the transcripts and recordings of any electronic surveillance. Pa.R.Crim.P. 573(B)(2) governs discretionary disclosure and requires a defendant to move for such discovery.
Appellee Wilson never requested discretionary discovery prior to trial. Thus, the Commonwealth was not required to notify Appellee Wilson that it intended to call an expert witness at trial. Furthermore, Appellee Wilson should have been aware that the Commonwealth was likely going to present an expert witness on PWID as to the oxycodone. The contents of the affidavit of probable cause for issuance of the criminal complaint and evidence adduced at the preliminary hearing plainly indicated that the two police officers in question observed transactions involving cocaine but not oxycodone. Instead, the twelve oxycodone pills were discovered during the execution of the search warrant. They were located in amber pill bottles inside a room in 2736 West Oakdale Street. As we will detail later, an ordinary juror would not necessarily conclude that those twelve pills were possessed with intent to deliver because the circumstances surrounding their discovery were as consistent with personal use as with PWID and because there were no observed transactions involving oxycodone. These factors present a case where someone without experience in the drug-dealing world might believe that Appellees were using the oxycodone themselves rather than dealing in it.
Accordingly, these facts placed Appellee Wilson on notice that the Commonwealth would need the testimony of an expert witness to prove the elements of PWID--oxycodone. Under Pa.R.Crim.P. 573(B)(2)(b), Appellee Wilson could have moved prior to trial to obtain a report from that expert witness. This, he failed to do. Thus, Appellee Wilson, rather than the Commonwealth, was to blame for the situation that arose on February 16, 2012, when Appellee Wilson was slated for trial and claimed to have no notice that an expert witness would be called. In light of these facts, the Commonwealth had not violated any rules of discovery, and there was no legal basis for the trial court's initial decision to order the exclusion of Officer Keys' testimony from evidence.
Once the trial court granted Appellee Wilson's motion to preclude that testimony, the Commonwealth was legally permitted to appeal as of right from that adverse decision. As our Supreme Court recently noted, "For purposes of an appeal, the court's ruling on a motion in limine is the same as a pre-trial suppression order. A pre-trial suppression order is, in its practical effect, a final order. The grant of a motion in limine is identical in effect, to a suppression order and characterized by identical indicia of finality." Commonwealth v. James, 69 A.3d 180, 184-85 (Pa. 2013) (citations and quotation marks omitted). This rule of law is a longstanding one and is premised upon the fact that the Commonwealth has only one opportunity to try a defendant and must have the ability to present all the evidence in its arsenal. Id. The precept is embodied in Pa.R.A.P. 311(d), which states: "In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution." Under this rule, the Commonwealth enjoys "an absolute right to appeal" any pretrial order precluding it from presenting evidence so long as "it certifies in good faith the order substantially handicaps or terminates the prosecution." Commonwealth v. Fulmore, 25 A.3d 340, 344 (Pa.Super. 2011). As we will discuss in more detail infra, the order in question had the effect of preventing the Commonwealth from proving the offense of PWID—oxycodone and therefore could have been appealed by the Commonwealth.
The trial judge displayed a misunderstanding of the pertinent law when it ruled initially at the February 16, 2012 proceeding that Officer Keys could not testify because the Commonwealth had not notified Appellee Wilson that it would call that witness. After that ruling, the trial judge also erroneously refused to acknowledge that the Commonwealth could appeal that decision.
When Ms. Moore explained to the court that she was "going to appeal [his] ruling, " the judge responded, "Sit down and be quiet." Id. Ms. Moore then explained that she could not proceed without the expert witness on the PWID—oxycodone—offense. The court repeated, "Sit down and be quiet. You open your mouth again, it starts at $500. You got it?" Id. A transcribed in-chambers discussion ensued, which delved into the Commonwealth's ability to appeal the exclusionary order. The trial court eventually retracted its original ruling and ordered the preparation of an expert report.
Our standard of review is as follows. "When the Commonwealth appeals from a suppression order, this Court follows a clearly defined scope and standard of review. We consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted." Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013).
Herein, the evidence of the Commonwealth was not controverted by Appellees, who solely relied upon a document that speaks for itself. The Commonwealth stated that it typed the report based on handwritten notes from Officer Keys. It offered to move those notes into evidence and to have Officer Keys sign the report. The fact that the district attorney transcribed Officer Keys' handwritten report into a typewritten form on its letterhead does not mean that the prosecutor "prepared" the report. The words were from the expert witness and the district attorney's office merely transformed them into a legible form. Thus, there was no violation of Pa.R.Crim.P. 573(B)(2)(b), and the trial court's decision to suppress Officer Keys' testimony was erroneous.
Assuming, arguendo, that there was a discovery violation involved in this matter, it did not warrant the sanction imposed by the trial court. A trial court enjoys broad discretion in fashioning a remedy for a discovery violation. Commonwealth v. Hemingway, 13 A.3d 491, 502 (Pa.Super. 2011). However, a "defendant seeking relief from a discovery violation must demonstrate prejudice." Commonwealth v. Johnson, 727 A.2d 1089, 1097 (Pa. 1999); see also Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.Super. 2003). The report herein fully apprised Appellees of the proposed testimony of Officer Keys. Any violation of Pa.R.Crim.P. 573(B)(2)(b) by the district attorney's action of typing Officer Keys' notes was de minimus and did not prejudice Appellees. Hence, the trial court improperly suppressed the testimony of Officer Keys, which was essential to prosecution of the PWID—oxycodone offense at issue herein. Hemingway, supra (trial court abused its discretion in ordering suppression of witnesses' testimony as discovery sanction where that ruling substantially hampered the Commonwealth's ability to prove its case).
We now address the propriety of the trial court's conclusion that Officer Keys was properly prevented from testifying since expert testimony was not required to establish PWID-oxycodone. Pa.R.E. 702 permits the testimony of an expert witness when:
If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Pa.R.Crim.P. 702 .
In this case, the trial court concluded that an average juror would be able to ascertain that the oxycodone discovered at 2736 West Oakdale Street was possessed with intent to deliver, the second element. We disagree with the trial court's conclusion. Appellees were observed selling crack cocaine, not oxycodone. The latter drug was located inside a residence in a pill bottle, and there were only twelve oxycodone tablets. These circumstances rendered it more than plausible that Appellees were using that drug themselves rather than selling it.
Our Supreme Court has noted, "expert testimony is important in drug cases where the other evidence may not conclusively establish that the drugs were intended for distribution. Such testimony is admissible to aid in determining whether the facts surrounding the possession of controlled substances are consistent with intent to deliver." Commonwealth v. Ratsamy, 934 A.2d 1233, 1236-37 (Pa. 2007) (citation omitted). Expert opinion testimony is admissible in a PWID case "concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use." Id. at 1238; accord Commonwealth v. Taylor, 33 A.3d 1283, 1288 (Pa.Super. 2011). The facts surrounding the possession of oxycodone were as consistent with an intent to deliver as with an intent to possess for personal use.
The trial court herein relied upon Commonwealth v. Watson, 945 A.2d 174 (Pa.Super. 2008), but that case supports rather than degrades the Commonwealth's position. Therein, the defendant was observed by surveillance police selling drugs five times in thirty minutes and retrieving them from an outside location. Police recovered drugs from that location where the defendant was seen procuring them for sale. We concluded that the Commonwealth should not have been permitted to introduce the testimony of an expert witness that the recovered drugs were possessed with intent to deliver. We noted that the eyewitness testimony of the surveillance officers already established the defendant's intent to deliver the drugs in question. We held that the proffered expert testimony was inadmissible because the jury could "easily comprehend that the drugs recovered were possessed with the intent to deliver without the assistance of an expert. When the expert's testimony corroborates a drug transaction, which is obvious to an average layperson, it invites the trier of fact to abdicate its responsibility and defer to the assessment of the expert." Id. at 176-77.
In the present case, there were no observed transactions involving oxycodone. Rather, the twelve tablets were inside a bottle, and were in a room where Appellees were located. In light of the fact that the circumstances herein involved two plausible scenarios, one involving PWID and the other involving possession for personal use, the Commonwealth was permitted to prove its case through the use of expert testimony.
Order reversed. Case remanded. Jurisdiction relinquished.
CONCURRING AND DISSENTING MEMORANDUM
I disagree with the Majority's conclusion that the Commonwealth complied with Pa.R.Crim.P. 573(B)(2)(b). The Rule requires that the expert prepare a report when the trial court so orders. An undated and unsigned report typed by the assistant district attorney, on the district attorney's letterhead, is not a report prepared by the expert witness. See Commonwealth v. Mendez, 74 A.3d 256, 261 n.2 (Pa.Super. 2013) ("[T]he form of the evidence offered by the Commonwealth, 'a narrative report prepared by Detective Jimmy Mummau ... containing notes of an interview with Dr. Philip Bayliss [and] a copy of Dr. Bayliss' curriculum vitae, ' … is not an expert report of the type contemplated under our discovery rules.").
However, I agree with the Majority that the trial court erred in ordering that Officer Keys may not testify because (1) the proposed testimony about Appellees' intent to deliver the oxycodone was relevant and admissible, and (2) Appellees were not prejudiced by the defects in the "expert report" offered by the Commonwealth. See Majority Memorandum at 14-17.