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Commonwealth v. Kinard

Superior Court of Pennsylvania

March 4, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
ALEXANDER KINARD, Appellant

Argued October 16, 2013.

Page 280

Appeal from the Judgment of Sentence of the Court of Common Pleas, Delaware County, Criminal Division, No. CP-23-CR-0004556-2010. Before NILON, J.

Brian M. Fishman, Philadelphia, for appellant.

William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON, AND WECHT, JJ. OPINION BY FORD ELLIOTT, P.J.E. Donohue, J. files a Dissenting Opinion which is joined by Bender, P.J.E., Shogan, J., and Wecht, J.

OPINION

Page 281

FORD ELLIOTT, P.J.E.:

Alexander Kinard (" appellant" ) appeals from the judgment of sentence imposed following his jury conviction for possession with intent to deliver (" PWID" ) and conspiracy.[1] For the following reasons, we affirm.

On three separate dates in June 2010, a confidential informant purchased $20 worth of crack cocaine from Jessica Morrison (" Morrison" ) at her residence located at 418 Timberlake Road in Upper Darby, Pennsylvania. Upper Darby police officers sought and obtained a warrant to search her home. On June 17, 2010, at approximately 6:30 p.m., Detective William McGoldrick, a narcotics detective, and ten other officers executed the search warrant at Morrison's residence. Inside the home, they encountered appellant, Morrison's cousin, using a bathroom on the second floor. Appellant was the only person present during the execution of the search warrant.

Subsequently, appellant was searched; $180 and two cell phones were removed

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from his possession. During the search of the home, a white plastic box was discovered in the kitchen which contained 18 clear Ziploc bags of marijuana as well as a single red heat-sealed plastic bag containing cocaine. Ten one-dollar bills were recovered from the front bedroom of the residence as well as an amber pill bottle containing numerous new and unused green Ziploc bags. Mail addressed to Morrison was also found.

Morrison was apprehended approximately one block from her home. At the time of arrest, she blurted out that she was in possession of narcotics; the police recovered ten small packets of crack cocaine, $37, and a cell phone. Morrison claimed that appellant had given her the cocaine to sell for him and that she had just left the house to get high. Morrison and appellant were both charged with PWID, conspiracy, and related offenses.

At trial, Morrison testified that appellant had arrived at her house 15 minutes before the police executed the search warrant. (Notes of testimony, 8/24/11 at 25.) Morrison stated that she called appellant and told him she wanted to get high; she asked appellant for " ten twenties." (Id. at 26.) Morrison explained that this meant she wanted $200 worth of cocaine. (Id.) However, Morrison had lied to appellant and claimed she only had $180. (Id. at 27.) According to Morrison, she agreed to sell crack and marijuana for appellant to make up the $20 difference she owed him for the drugs. (Id. at 28.)

Morrison testified that appellant supplied her with all of the drugs found in the residence. Morrison also testified that she dealt drugs and sometimes talked in code to elude the police. (Id. at 34.) For example, " cat food" meant crack and " cream of wheat" meant " soft cocaine." (Id. at 35.) The term " to get it ready" means to get the drugs ready for delivery. (Id. at 36.) The term " chicken" was used when referring to money. (Id.) Morrison, who was incarcerated on the charges, averred that no one had made her an offer for her testimony and that the Commonwealth had not offered a plea agreement. (Id. at 38.)

Prior to trial, the Commonwealth filed a motion pursuant to Pa.R.E. 404(b) seeking admission into evidence of recordings of several telephone calls appellant made while incarcerated and awaiting trial.[2] In those recorded conversations, appellant used code language to discuss the sale of narcotics. On June 17, 2011, the trial court entered an order granting the Commonwealth's motion. However, the trial court denied the Commonwealth's Rule 404(b) motion requesting that Morrison be permitted to testify to prior drug sales that occurred between Morrison and appellant before the date of arrest.

At trial, the Commonwealth introduced into evidence the recordings of two telephone conversations and the expert testimony of Upper Darby Police Officer Timothy Bernhardt. Officer Bernhardt testified that drug dealers typically speak in code or slang to avoid detection and apprehension by law enforcement. (Id. at 118.) During his testimony, the prosecution played recordings of two phone calls appellant placed from prison to two unidentified individuals. The prosecutor occasionally would stop the tape and ask the expert to explain the meaning of appellant's terminology.

For example, Officer Bernhardt testified that when appellant used words like " cat food" and " medicine" during the recorded

Page 283

conversations, he was referring to cocaine; " cream of wheat" refers to crack cocaine, and " blueberry pie" is a reference marijuana. (Id. at 151-152, 170-171.) Officer Bernhardt also explained that the phrase " be ready" means to have completed the process of transforming powdered cocaine into crack. (Id. at 133.) The officer also testified that " three dollars" means three hundred dollars, " five dollars" means five hundred dollars," and " Chicken" on the street is known as money. (Id. at 135.) " Pass off," on the street, is known as passing narcotics off to either the person who is going to sell them or another location where they are going to be sold/stored. (Id. at 135.) " Keep it circulating" is a reference to keeping the drugs on the street to make money. (Id. at 136.) The officer also opined that appellant's statement to an unidentified female that she was " not a boss" meant that appellant was the boss of the narcotics operation. (Id. at 153.) At one point, appellant stated that he " needs to treat little cousin to a dub," which means $20, but there is no indication that the cousin he referred to was Morrison. (Id. at 136-137.)

Appellant did not testify at trial and did not present other witnesses or evidence in his defense apart from challenges to the Commonwealth's evidence in the prosecution's case. However, appellant's defense was clear that he was merely present in Morrison's home at the time of the search and had no connection to the drugs found. On August 25, 2011, a jury, sitting before the Honorable James F. Nilon, Jr., convicted appellant of one count of PWID and two counts of criminal conspiracy. On October 12, 2011, appellant was sentenced to 48 to 96 months' imprisonment followed by 5 years of probation; he filed post-sentence motions that were denied on November 2, 2011. A timely appeal followed.

The following issues have been presented for our review.

I. DID THE TRIAL COURT ERR IN GRANTING THE COMMONWEALTH'S MOTION TO ADMIT EVIDENCE THAT APPELLANT MADE INCRIMINATING TELEPHONE CALLS FROM PRISON SUBSEQUENT TO HIS ARREST WHERE THIS EVIDENCE WAS NOT GERMANE TO ANY MATERIAL ISSUE IN THE CASE WHERE THE PROBATIVE VALUE OF THE CALLS DID NOT OUTWEIGH THEIR PREJUDICIAL EFFECT?
II. DID THE [TRIAL] COURT ERR IN PERMITTING THE COMMONWEALTH TO ADMIT EXPERT TESTIMONY CONCERNING THE MANNER IN WHICH DRUG DEALERS ALLEGEDLY SPEAK WHERE: (A) THE PROFFERED TESTIMONY WAS NOT SPECIALIZED KNOWLEDGE BEYOND THE UNDERSTANDING OF THE AVERAGE LAY PERSON; AND (B) THE TESTIMONY, WHICH WAS CUMULATIVE TO THAT OF MS. MORRISON, SERVED ONLY TO IMPROPERLY BOLSTER HER CREDIBILITY?
III. DID THE PROSECUTOR COMMIT MISCONDUCT WHERE SHE PERMITTED MS. MORRISON TO TESTIFY THAT SHE HAD NO EXPECTATION OF LENIENCY AND HAD RECEIVED NO FAVORABLE TREATMENT FOR HER TESTIMONY AGAINST APPELLANT WHEN, IMMEDIATELY AFTER TRIAL, MS. MORRISON ENTERED INTO A NEGOTIATED GUILTY PLEA WITH THE DISTRICT ATTORNEY'S

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OFFICE AND RECEIVED A SENTENCE OF LESS THAN THE MANDATORY MINIMUM SENTENCE SHE WAS REQUIRED TO SERVE?
IV. WAS THE EVIDENCE SUFFICIENT TO SUPPORT EACH OF APPELLANT'S CONVICTIONS WHERE THE ONLY EVIDENCE LINKING HIM TO THE CRIMES WAS THE TESTIMONY OF MS. MORRISON, HIS CO-CONSPIRATOR, WHO HAD A MOTIVE TO FALSELY IMPLICATE HIM?

Appellant's brief at 4.

Appellant first challenges the trial court's grant of the Commonwealth's motion in limine allowing admission of other crimes evidence. Admission of evidence rests within the discretion of the trial court, and we will not reverse absent an abuse of discretion. Commonwealth v. Washington, 63 A.3d 797, 805, 2013 PA Super. 51 (Pa.Super. 2013). " Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Commonwealth v. Martinez, 2007 PA Super. 33, 917 A.2d 856, 859 (Pa.Super. 2007).

Generally speaking, evidence is admissible if it is relevant, that is, " if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Williams, 586 Pa. 553, 581, 896 A.2d 523, 539 (2006) (citation omitted); Pa.R.E. 402. It is settled law in this Commonwealth that other bad acts evidence is inadmissible to prove a defendant's propensity to commit crime. Commonwealth v. Brookins, 2010 PA Super. 206, 10 A.3d 1251, 1256 (Pa.Super. 2010), appeal denied, 610 Pa. 625, 22 A.3d 1033 (2011). Nonetheless, bad acts evidence may be introduced for other limited purposes, including, but not limited to, establishing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, common scheme or design, modus operandi, and the natural history of the case. Id.; Pa.R.E. 404(b)(2). This evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

It has been succinctly stated that (t)he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.

Commonwealth v. Spruill, 480 Pa. 601, 604-605, 391 A.2d 1048, 1049 (1978).

Appellant argues that the trial court erred in admitting recordings of phone calls he made from prison in which he discussed drug transactions using terminology commonly employed by drug dealers to evade detection. Appellant contends the calls have no probative value as to the issue of whether he constructively possessed the drugs found in Morrison's home. Rather, the recorded conversations " improperly invited the jury to convict him based on his apparent involvement in narcotics trafficking unrelated to the charges for which he stood trial." (Appellant's brief at 8.)

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The trial court found that the phone conversations were relevant to establish a common scheme or plan and the absence of mistake or accident in accordance with Rule 404(b)(2). (Trial court opinion, 1/24/12 at 8.) The trial court believed that the other acts evidence was relevant to establish a chain of events and a course of criminal conduct that would demonstrate appellant's presence in Morrison's home where the police located drugs was not an innocent coincidence or accident as the defense alleged. (Id. at 8-10.) After careful review, we find the trial court's ruling was not an abuse of its considerable discretion.

The telephone calls demonstrate appellant's knowledge and awareness of drug trafficking and support Morrison's testimony that appellant is the supplier and that he was not innocently in Morrison's home, but rather was there conducting business. The calls also reveal a common plan, scheme, and design. As the trial court stated, the calls demonstrated that appellant was engaged in ongoing drug transactions even after he was arrested. The drug transactions were similar, if not identical, to the drug transactions for which he was charged. The calls also reveal appellant's knowledge of and use of coded language. Again, Morrison testified that she used coded language when she asked appellant for drugs. Morrison asked appellant for " ten twenties." Appellant, in turn, met her request and supplied the drugs. The coded language used during the taped phone calls was similar and demonstrated not only that appellant understood the code used by others but appellant also used the language himself.

Furthermore, the bad acts occurred in a pattern over three months after his arrest.[3] The testimony was relevant in establishing the chain of events and course of criminal conduct of appellant. (See id. at 8.) We find no abuse of discretion in the trial court's finding that the calls fell within the parameters which define admissible limits of other criminal activity.

Appellant relies on Commonwealth v. Aguado, 2000 PA Super. 293, 760 A.2d 1181 (Pa.Super. 2000). In Aguado, the defendant was charged with PWID; Aguado had previously been charged, nine months earlier, with PWID for acts occurring in the same neighborhood in which his current charges arose. Through a motion in limine, Aguado sought to preclude the Commonwealth from introducing evidence of his prior PWID conviction. At trial, the court stated that it would defer its ruling until he testified, but suggested ...


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