March 3, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
CHARLES BRITTON, Appellant
Appeal from the Judgment of Sentence June 25, 2013, Court of Common Pleas, Erie County, Criminal Division at No. CP-25-CR-0003115-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*] , JJ.
Appellant, Charles Britton ("Britton"), appeals from the judgment of sentence entered on June 25, 2013, following his convictions of three counts of Delivery of a Controlled Substance and three counts of Possession of Drug Paraphernalia. For the reasons that follow, we affirm the judgment of sentence.
In February 2012, Britton became the target of an investigation by Trooper Donald P. Claypoole ("Trooper Claypoole") of the Pennsylvania State Police Troop E Erie vice unit. Trooper Claypoole became involved with the investigation when Ryan Henry ("Henry"), who was already involved as a confidential informant in another investigation with another trooper, informed Trooper Claypoole that he knew he could purchase drugs from Britton.
Trooper Claypoole and Henry planned three controlled buys with Britton. On February 16, 2012, Britton sold 15 Vicodin tablets to Henry for $115.00. On February 23, 2012, Britton sold another 23 Vicodin tablets to Henry for $150.00. Britton then sold Henry 15 Vicodin tablets and 17 Adderall pills for $200.00 on March 20, 2012.
In May 2013, Britton was convicted of three counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act, Unlawful Delivery, 35 P.S. § 780-113(a)(30), and three counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act, Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32). N.T., 5/21/13, at 44-45. On June 25, 2013, Britton was sentenced to 11 ½ to 23 months of incarceration and one year of probation to follow incarceration. N.T., 6/25/13, at 19.
Britton timely filed a Motion for a New Trial based on two claims: (1) he was prejudiced when he was escorted out of the courtroom by a deputy sheriff in the presence of the jury pool, and (2) the verdict was against the weight of the evidence. The trial court denied the motion and this timely appeal followed.
On appeal, Britton raises three issues for our consideration and determination:
1. Did the trial court err in determining that the evidence submitted at the preliminary hearing was sufficient to establish a prima facie case when testimony of the informant was not offered?
2. Did the trial court commit reversible error when permitting the jury pool to view the defendant as being under the control of the sheriff's deputy?
3. Was the evidence in this case sufficient to convict the defendant when the informant's testimony and the testimony of other witnesses did not substantiate the claims that Mr. Britton indeed sold controlled substances to the informant?
Britton's Brief at 3.
Britton's first issue on appeal is that the Commonwealth's evidence at the preliminary hearing was insufficient to establish a prima facie case. Specifically, Britton argues that the evidence was insufficient because the Commonwealth only offered hearsay testimony by Trooper Claypoole and did not release Henry's identity, and Henry did not testify. Britton's Brief at 6-7. Britton further alleges that the identity of the confidential informant was necessary to his defense so that he could ask questions at the preliminary hearing regarding the transactions that allegedly occurred inside of Britton's home. Britton's Brief at 8-9. Britton claims that the confidential informant's testimony was necessary to substantiate the testimony set forth by Trooper Claypoole, and without the confidential informant's testimony, the Commonwealth could not establish a prima facie case. Britton's Brief at 8.
Britton is not entitled to relief on this claim because, as this Court has held:
The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Wodjak, 502 Pa. 359, 466 A.2d 991 (1983). Its purpose is not to prove defendant's guilt. Once appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial.
Commonwealth v. Tyler, 587 A.2d 326, 329 (Pa.Super. 1991) (emphasis in original).
Britton was found guilty at his jury trial. Thus, Britton's claims regarding alleged defects in the preliminary hearing are rendered immaterial by the guilty verdict. As a result, this Court need not address Britton's first issue that the Commonwealth did not establish a prima facie case at the preliminary hearing. Britton's claim is moot.
Britton's second issue is based on his claim that he was denied the right to a fair trial when he was escorted from the courtroom by a deputy sheriff in the presence of the jury panel. The deputy mistakenly believed that a weapon and ammunition were being used as an exhibit in the case. A new rule established by the Erie County Sheriff's office required defense counsel and the defendant to sit in particular seats when a weapon and ammunition were to be used as exhibits in the case. Since Britton and his attorney were not seated in the proper seats, Britton was escorted from the courtroom. Trial Court Opinion, 9/12/13, at 3. Britton alleges that this incident conveyed a message to the jury that he was in custody, and that "it's almost akin to seeing him in either greens or in shackles." N.T., 5/20/13, at 4 (defense counsel's oral motion at the trial court requesting that a new jury panel be seated).
This Court has held that "proper security measures are within the discretion of the trial court." Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa.Super. 1992) (citing Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1975)). However, there is a legal presumption against the use of physical restraint of an accused in the courtroom unless the "restraint [is] reasonably necessary to maintain order." Commonwealth v. Pezzeca, 749 A.2d 968, 970 (Pa.Super. 2000) (citing Jasper, 610 A.2d at 955).
Britton's claim here is without merit. The brief interaction between the deputy and Britton was not inherently prejudicial. This Court previously addressed the use of brief security measures in Commonwealth v. Carson, 913 A.2d 220 (Pa.Super. 2006):
In Commonwealth v. Evans, this Court found that the possibility that jurors saw the defendant in handcuffs would not necessarily "contaminate the jury's decision-making process." 465 Pa. 12, 348 A.2d 92, 94 (1975). Over a decade later, this Court declared that a brief viewing of the defendant in handcuffs "is not so inherently prejudicial as to strip the defendant of the presumption of innocence."
Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 501 (1988). Carson, 913 A.2d at 257.
Here, Britton was in street clothes, was not handcuffed, and was not physically touched or under the physical control of the deputy as he was escorted out of the courtroom. N.T., 5/20/13, at 4. The certified record does not disclose whether the jury even noticed the incident, and Britton offers no basis on which to conclude his escort from the courtroom was "so inherently prejudicial as to strip [Britton] of the presumption of innocence." Carson, 913 A.2d at 257 (citing Lark, 543 A.2d at 501). As a result, Britton was not prejudiced and deprived of his right to a fair trial when he was escorted out of the courtroom.
For his third issue on appeal, Britton contends that the evidence presented by the Commonwealth was insufficient to convict him of selling controlled substances because Henry, the sole eye-witness to the alleged transactions, is not a credible witness. We begin first with our standard of review:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.
Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa.Super. 2005) (citing Commonwealth v. Pappas, 845 A.2d 829, 835-36 (Pa.Super. 2004)).
In Commonwealth v. Palo, 24 A.3d 1050 (Pa.Super. 2011), this Court held that a sufficiency argument "directed entirely to the credibility of the Commonwealth's chief witness" is not a challenge to the sufficiency of the evidence, but is a challenge to the weight of the evidence. Id. at 1055. On appeal, Britton has challenged the sufficiency of the evidence, not its weight. As our standard of review for sufficiency claims provides, the trier of fact (here the jury) is free to believe all, part, or none of the evidence. Bricker, 882 A.2d at 1014. With its verdict, the jury apparently found Henry to be a credible witness. This Court will not disturb such a finding.
Judgment of sentence affirmed.