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[U] Commonwealth v. Alston

Superior Court of Pennsylvania

February 14, 2014



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




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.[1]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.[2] 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 fact the statute of limitations had not run at the time of trial?

Appellant's Brief at 5-6 (bolding and capitalization omitted).

First, Appellant claims that the trial court erred in failing to grant his motion to suppress because the police conducted an investigative detention of Appellant without reasonable suspicion, which "forced the abandonment" of the plastic bag containing heroin. Appellant's Brief at 20-22. Appellant argues further that the police lacked probable cause to arrest Appellant and conduct a search incident to arrest. Id. at 18-19.

We have discussed our review of suppression claims as follows.

When considering the denial of a suppression motion, this Court's review is limited to determining whether the [suppression] court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed in the suppression court, we consider only the Commonwealth's evidence and so much of the appellant's evidence as is uncontradicted when read in the context of the record as a whole. Where the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn from them are erroneous.

Commonwealth v. West, 937 A.2d 516, 527 (Pa.Super. 2007) (internal citations omitted).

The Fourth Amendment of the Federal Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures. To secure the right of citizens to be free from such [unreasonable] intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive. We have long recognized that there are three levels of intrusion involved in interactions between members of the public and the police. The first is a mere encounter, which requires no level of suspicion at all. The second level is an investigative detention, which must be supported by reasonable suspicion. Finally, the third level is an arrest or custodial detention, which must be supported by probable cause.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa.Super. 2012) (citations and quotation marks omitted, alteration in original).

In the instant case, the sentencing court reasoned that Appellant had no standing to challenge the seizure of the plastic bag containing heroin, as the bag was voluntarily abandoned. Sentencing Court Opinion, 4/5/2013, at 14-15. The sentencing court further explained that, while "[a]bandoned property may not be used as evidence if the abandonment was coerced by unlawful police action, " the detectives in the present matter engaged in no such unlawful activity. Id. at 15. We agree.

We find this Court's decision in In Interest of Evans, 717 A.2d 542 (Pa.Super. 1998), instructive. The facts of Evans are as follows.

At approximately 8:30 p.m. on April 17, 1997, plainclothes Pittsburgh Police Officers Bolin, Kelly, and Cornwall observed Evans and two other men standing on the street. The officers were patrolling the streets in an unmarked vehicle. When Evans noticed the officers, he appeared startled and made a quick turn holding the waistband of his pants with his left hand. The officers got out of the car and approached the three men. Evans turned and threw an object that was quickly retrieved by Officer Kelly. Meanwhile, Officer Kelly's partner grabbed Evans and another man. The object discarded by Evans was a knotted clear plastic bag containing nine individually-wrapped pieces of crack cocaine. Evans was also found to be in possession of a knotted plastic bag containing marijuana.

Id. at 543-44.

Evans was then adjudicated delinquent of PWID. On appeal, Evans challenged, inter alia, the trial court's denial of his motion to suppress the cocaine and marijuana. Id. at 544. A panel of this Court rejected Evans's argument, and contrasted his case with Commonwealth v. Jeffries, 311 A.2d 914 (Pa. 1973).

In Jeffries, the defendant was walking down the street, noticed four police officers and quickened his pace, prompting the police officers to exit the police car. The defendant then began to run and the police chased him. The defendant abandoned a cigarette pack containing drugs and the police arrested him. The court explained that [a]lthough abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment was coerced by unlawful police action. The court excluded the evidence holding that [t]he causative factor in the abandonment presently under consideration was the unlawful and coercive action of the police in chasing the defendant in order to seize him. When the causative factor in the abandonment is an unconstitutional search and seizure, the contraband must be suppressed.
There is a subtle but important distinction, however, between the facts of Jeffries and the facts of the present case. In Jeffries the police began to chase the suspect before he abandoned the evidence. Here, however, Evans abandoned the crack cocaine as soon as the police officers stepped out of the car. Stepping out of a police car is not unlawful police action under any circumstances. Therefore, unlike in Jeffries, the causative factor in the abandonment was not unlawful action on the part of the officers. Once the evidence was abandoned, the police were free to retrieve it and use it for evidentiary purposes.

Id. at 545 (citations and quotation marks omitted).

Similarly, in the present case, the detectives did nothing to make Appellant abandon the bag of heroin. Rather, the record confirms that Appellant discarded the bag upon the mere sight of the detectives driving down the street. N.T., 10/20/2006, at 11. Once the bag was abandoned, the detectives were free to seize it and use it as evidence against Appellant. Accordingly, the trial court did not abuse its discretion by refusing to suppress the plastic bag containing heroin, and Appellant is not entitled to relief on this basis.

With regard to Appellant's claim that the police lacked probable cause to arrest him, the sentencing court reasoned that "the Commonwealth established the requisite probable cause for the arrest of Appellant based on the recovery of 248 stamp bags of heroin from the bag that Appellant abandoned." Sentencing Court Opinion, 4/5/2013, at 17. Again, we agree, and find that the instant case is analogous to Evans. In that case, the police arrested Evans based the cocaine he had discarded. This Court concluded that "[t]he recovery of a substance that appeared to be crack cocaine gave Officer Kelly the probable cause he needed to make the arrest; therefore, the subsequent arrest was not unlawful." Id. at 545. Likewise, the heroin recovered from the plastic bag in this case gave the detectives probable cause to arrest Appellant. No relief is due.

We next consider Appellant's argument that the evidence presented at trial was insufficient to convict him of possession and PWID.[3] We consider a challenge to the sufficiency of the evidence pursuant to the following standard.

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.

Commonwealth v. Stays, 70 A.3d 1256, 1266 (Pa.Super. 2013) (citations and quotation marks omitted).

The offense of possession of a controlled substance is codified at 35 P.S. § 780-113(a)(16), and prohibits knowing or intentional possession of a controlled or counterfeit substance. PWID is codified at 35 P.S. § 780-113(a)(30), and prohibits, "[e]xcept as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act … or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance." This Court has held that to convict a person of PWID

the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. In determining whether there is sufficient evidence to support a PWID conviction, all facts and circumstances surrounding the possession are relevant, and the Commonwealth may establish the essential elements of the crime wholly by circumstantial evidence. Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant.

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa.Super. 2005) (citations omitted). "Thus, possession with intent to deliver can be inferred from the quantity of the drugs possessed and other surrounding circumstances, such as lack of paraphernalia for consumption." Commonwealth v. Torres, 617 A.2d 812, 814 (Pa.Super. 1992).

Instantly, at Appellant's suppression hearing, Detectives Bradley Walker and Richard Yochus both testified[4] that they observed Appellant holding a white plastic bag, that they observed Appellant throw the bag, and that the bag was found to contain heroin. N.T., 10/20/2006, at 6, 9-12, 37-38, 40-41. The sentencing court concluded that "[t]hese facts are sufficient to establish the crime of possession." Sentencing Court Opinion, 4/5/2013, at 9. Viewing the evidence in the light most favorable to the Commonwealth, as we must, we agree that sufficient evidence was presented to support Appellant's conviction of possession of a controlled substance.

With regard to Appellant's PWID conviction, Detective Martin Zimmel testified as the Commonwealth's expert in narcotics transactions and investigations. Id. at 47. Detective Zimmel was given a hypothetical based on the facts testified to by Detectives Walker and Yochus. Id. At 47-48. Assuming those facts, Detective Zimmel opined that a person in Appellant's position would be possessing heroin with the intent to deliver. Id. at 48. Detective Zimmel provided the following the explanation.

Based on my experience, having made numerous arrests in the heroin area, that being sellers and users, this what I call a classic case of a dealer in that the amount of the stamp bags is not common for a user. The lack of any needles, spoons, or the works, as they call it, to indicate someone is a user, is not there. $421[, the amount of cash recovered from Appellant, ] isn't a lot. But it's not a small amount, either. So based on that, I did some figuring on the value of that heroin …. which would be $1, 750 in heroin, I guess you would call it a wholesale value.

Id. at 48-49. The sentencing court again concluded that "[t]hese facts are sufficient to establish that Appellant possessed the heroin with the intent to deliver." Sentencing Court Opinion, 4/5/2013, at 9. We agree that the trial court was free to accept Detective Zimmel's testimony, and because we "cannot deem incredible that which the fact-finder deemed worthy of belief, " Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007), we hold that the evidence presented by the Commonwealth was also sufficient to support Appellant's PWID conviction.[5]

Appellant next challenges the weight of the evidence for both his possession of a controlled substance and PWID charges. Specifically, Appellant directs our attention to Roger Carr, who testified at Appellant's trial that he, not Appellant, possessed the bag of heroin. N.T., 10/20/2006, 57-58. Our standard of review is well-settled.

The weight given to trial evidence is a choice for the factfinder. If the factfinder returns a guilty verdict, and if a criminal defendant then files a motion for a new trial on the basis that the verdict was against the weight of the evidence, a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock one's sense of justice.
When a trial court denies a weight-of-the-evidence motion, and when an appellant then appeals that ruling to this Court, our review is limited. It is important to understand we do not reach the underlying question of whether the verdict was, in fact, against the weight of the evidence. We do not decide how we would have ruled on the motion and then simply replace our own judgment for that of the trial court. Instead, this Court determines whether the trial court abused its discretion in reaching whatever decision it made on the motion, whether or not that decision is the one we might have made in the first instance.
Moreover, when evaluating a trial court's ruling, we keep in mind that an abuse of discretion is not merely an error in judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest unreasonableness or a misapplication of the law. By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa.Super. 2013) (quoting Commonwealth v. West, 937 A.2d 516, 521 (Pa.Super. 2007)).

In the present matter, the sentencing court reasoned that "it is clear that the [t]rial [c]ourt did not abuse its discretion in ruling on Appellant's weight claim." Sentencing Court Opinion, 4/5/2013, at 13. We again agree with the sentencing court. The trial court was free to accept the testimony of the detectives over that of Carr, and we conclude that the trial court did not abuse its discretion by refusing to grant a new trial based on the weight of the evidence for either possession of a controlled substance or PWID. See Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa.Super. 2003) (quoting Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)) ("The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.").

Appellant's next claim is that "the entire case is tainted due to the involvement of officers who were removed from the police force due to legal problems including but not limited to coercing a witness not to testify with money and narcotics." Appellant's Brief at 23 (bolding and capitalization omitted). Appellant alleges that, after his trial, Detectives Walker and Snider left or were removed from the force because of various "legal issues." Appellant's Brief at 23. Appellant claims that, because of this, the testimony used to convict Appellant is "tainted, " and that "[t]he interest of justice [would be] served by granting [Appellant] a new trial in which the issue of the truthfulness of the detectives can be brought to light through cross examination." Id. at 24.

Appellant first raised this claim prior to sentencing in an oral motion for extraordinary relief pursuant to Pa.R.Crim.P. 704(B). The rule provides as follows.

(B) Oral Motion for Extraordinary Relief.
(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.
(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal.

Pa.R.Crim.P. 704(B).

The comment to Rule 704 provides further explanation for when such a motion is appropriate.

Under paragraph (B), when there has been an error in the proceedings that would clearly result in the judge's granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed. Because the relief provided by this section is extraordinary, boilerplate motions for extraordinary relief should be summarily denied.

Comment to Pa.R.Crim.P. 704.

Presently, Appellant fails to explain how the trial court's reliance on the testimony of Detective Walker[6] during Appellant's suppression hearing and bench trial was the sort of "error in the proceedings that would clearly result in the judge's granting relief post-sentence[.]" Comment to Pa.R.Crim.P. 704; see also Commonwealth v. Bozic, 997 A.2d 1211, 1227 (Pa.Super. 2010) ("[T]he Comment to Rule 704(B) explains a motion for extraordinary relief should be granted where it is manifest, for example, that an egregious error has been committed during trial or a change in controlling case law has occurred such that immediate relief prior to sentencing is essential."). Among other things, Appellant does not discuss what Detective Walker's alleged "legal issues" were, or how they had any connection at all to the events of this case or to his credibility as a witness.[7] Rather, as observed by the sentencing court, this argument appears to be another attempt by Appellant to challenge the weight of the evidence supporting his conviction. Sentencing Court Opinion, 4/5/2013, at 19.[8] We have already concluded that Appellant's weight of the evidence claims merit no relief, and we need not address this issue further.

Appellant's final argument is that "[t]he sentencing court erred in denying [Appellant's] motion for extraordinary relief by relying upon a false assertion from the Commonwealth that Mr. Carr was not testifying against his penal interest." Appellant's Brief at 25 (bolding and capitalization omitted). Appellant presents this argument as follows.

The statute of limitations for any offense under the Controlled Substance, Drug, Device, and Cosmetic Act is five years. 42 Pa.C.S. §[]5552(2). The date of the offense was June 28, 2003. The date that Mr. Carr testified was October 20, 2006. That amounts to three years, three months and 23 days; clearly less the than five year statute of limitations. Therefore, Mr. Carr's testimony raised the specter of criminal charges as he was admitting under oath that he was the one possessing the drugs in question. [The assistant district attorney], however, told the [sentencing] court that Mr. Carr's testimony was self[-]serving because the alleged two year statute of limitations had run by the time that Mr. Carr testified. This misstatement of fact caused the sentencing court to err in assessing the evidence presented. If Mr. Carr testified without any potential criminal charges coming as a result, then a large reason that Mr. Carr was trustworthy and credible is negated. Because [the assistant district attorney] misstated the statute of limitations, the sentencing court erred by denying [Appellant's] Motion for Extraordinary Relief. Appellant's Brief at 25 (citation to the reproduced record omitted).

As discussed in relation to Appellant's previous claim, supra, motions for extraordinary relief are only appropriate under certain very limited circumstances. Here, Appellant alleges once more that the trial court made an inappropriate credibility determination. Appellant claims that the sentencing court failed to correct that determination because it relied upon an incorrect statement of the statute of limitations for drug crimes. We again conclude that this is not the sort of claim that presents an "error in the proceedings" that "would clearly result in the judge's granting relief post-sentence[.]" Comment to Pa.R.Crim.P. 704. Notably, the fact that Carr was still subject to potential criminal prosecution at the time he testified was argued vigorously by defense counsel at Appellant's actual trial, and the Commonwealth did not dispute this point.[9] See N.T., 10/20/2006, at 76. There is also nothing in the record to suggest that the sentencing court relied upon the assistant district attorney's statement in denying relief. Rather, the sentencing court indicated that it was denying Appellant's motion because Carr's "testimony was taken at the original proceeding and passed upon ultimately by the fact finder in this instance." N.T., 3/28/2012, at 10. The sentencing court reasoned that, based on Robinson, supra, it was not permitted to reassess the credibility of Carr and reweigh the evidence in the context of a Rule 704 motion. See Trial Court Opinion, 4/5/2013, at 19. Appellant does not challenge this conclusion. It is Appellant's burden to convince this Court that he is entitled to relief. See Commonwealth v. Montgomery, 687 A.2d 1131, 1133 n.1 (Pa.Super. 1996). He has not done so here.

Accordingly, because we conclude that that none of Appellant's claims entitles him to relief, we affirm his judgment of sentence.

Judgment of sentence affirmed.

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