Appeal from the Judgment of Sentence March 28, 2012 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016645-2003
BEFORE: PANELLA, ALLEN, and STRASSBURGER [*] , JJ.
Markell Alston (Appellant) appeals from the judgment of sentence entered March 28, 2012, after he was found guilty of possession of a controlled substance, possession with intent to deliver (PWID), and littering.We affirm.
The sentencing court summarized the relevant facts as follows.
At approximately 5:15 P.M. on June 28, 2003, three City of Pittsburgh police officers, Bradley Walker, Richard Yochus, and Donald Snider, were working a street response unit in an unmarked vehicle in the Hazelwood section of the City of Pittsburgh, Allegheny County. When the officers turned onto Monongahela Street they had an unobstructed view of [Appellant] clutching a white plastic grocery bag in his right hand and having a conversation with another man, Roger Carr. This conversation was occurring in an abandoned lot on the side of the street in the 4700 block of Monongahela Street. This area was known for open air drug activity and Carr was a known drug user. Carr was facing the unmarked police vehicle; [Appellant's] back was partially towards the police vehicle. Carr was familiar with this particular unmarked vehicle and the detectives themselves from prior encounters with the officers. Carr looked directly at the unmarked police vehicle, made a comment to [Appellant], and [Appellant] turned around to look at the vehicle as well. [Appellant] then threw the bag approximately eight to ten feet to his side onto a small hillside adjacent to the lot.
The officers approached and parked next to Carr and [Appellant], identifying themselves as police officers. Detective Walker rolled down the rear passenger window and asked [Appellant], "What's going on?"; [Appellant] replied, "Nothing." At that point detectives Walker and Yochus exited the vehicle, followed shortly thereafter by detective Snider. Detective Walker confirmed the presence of the discarded plastic bag on the hillside and directed detective Yochus to retrieve it while detective Walker talked with [Appellant]. Detective Yochus retrieved the bag and looked inside, finding five bricks of heroin wrapped in newspaper. The bag contained a total of 248 stamp bags of heroin. There were 124 stamp bags marked "Coast to Coast" that weighed a total of 3.616 grams, and 124 unmarked stamp bags that weighed a total of 3.763 grams. At that point [Appellant] was arrested and searched incident to arrest. The officers recovered $421 and a Nextel cell phone; no personal use drug paraphernalia was recovered.
Sentencing Court Opinion, 4/5/2013, at 6-7 (footnote and citations to the record omitted)
As a result of these events, Appellant was charged with the aforementioned offenses. A suppression hearing was held before the Honorable John Reilly (referred to here as the "trial court") on October 20, 2006. Suppression was denied and Appellant proceeded to a bench trial. N.T., 10/20/2006, 42-43. Appellant was found guilty of all charges. Appellant was set to be sentenced on or about January 12, 2007, but he failed to appear, and a bench warrant was issued. Apparently, Appellant remained at large until 2011, when he was charged with respect to an unrelated incident. This case then was transferred to the Honorable Edward Borkowski (referred to here as the "sentencing court"). On March 28, 2012, Appellant received a sentence of 5 to 10 years' imprisonment on the PWID charge with a sentence of no further penalty on the possession of a controlled substance and littering charges.
Appellant timely filed an omnibus post-sentence motion on April 9, 2012. Appellant filed an amended omnibus post-sentence motion on June 4, 2012. An order was entered denying Appellant's post-sentence motions by operation of law on September 17, 2012. Appellant then timely filed a notice of appeal. On October 2, 2012, the sentencing court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant failed to timely file a concise statement. However, on October 24, 2012, Appellant filed a petition for extension of time to file a concise statement, which was granted by the sentencing court that same day. Appellant then timely filed a concise statement.
Appellant now raises the following issues on appeal, which we have reordered for ease of disposition.
I. Did the trial court err in denying [Appellant's] suppression motion by ruling that officers had reasonable suspicion at the time that [Appellant] was detained?
II. Did the sentencing court err in denying [Appellant's] motion for a new trial due to a suppression motion ruling against the weight of the evidence because the Commonwealth failed to prove that officers had probable cause to arrest [Appellant] and conduct a search incident to an arrest?
III. Did the trial court commit an error of law when it found that the evidence presented was legally sufficient to convict [Appellant] of possession?
IV. Did the trial court commit an error of law when it found that the evidence presented was legally sufficient to convict [Appellant] of [PWID]?
V. Did the sentencing court err in denying [Appellant's] motion for a new trial due to a verdict against the weight of the evidence as to the charge of possession?
VI. Did the sentencing court err in denying [Appellant's] motion for a new trial due to a verdict against the weight of the evidence as to the charge of [PWID]?
VII. Did the sentencing court err in denying [Appellant's] motion for extraordinary relief due to the involvement of officers who were subsequently removed from the City of Pittsburgh Police for cause?
VIII. Did the sentencing court err in denying [Appellant's] motion for extraordinary relief based upon the misrepresentation of the assistant district attorney who claimed that Mr. Carr did not testify against his own penal interest when in ...