March 4, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
LAMAR MAYFIELD, Appellant
Appeal from the Judgment of Sentence entered June 28, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0008294-2009.
BEFORE: ALLEN, JENKINS, and FITZGERALD [*] , JJ.
Lamar Mayfield ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of possession with intent to deliver a controlled substance and numerous related charges.
The pertinent facts, which are taken from the trial testimony and are largely undisputed, are summarized as follows: On July 31, 2007, Officer Thomas Kuhn, a member of the Philadelphia narcotics unit, received a complaint of illegal gun and drug activity at 606 West Mayfield Street in Philadelphia. The complaint implicated "a black male, bald, with a beard that may go by the name of Kevin . . . Anderson." N.T., 4/2/12, at 70. That same day, Officer Kuhn and his partner, Officer Roberson, initiated an investigation of the suspect property by meeting with a confidential informant ("CI").
After determining that the CI was carrying neither money nor drugs, the officers provided the CI with $40.00 pre-recorded money, and directed him to 606 West Mayfield Street. Appellant was sitting on the front steps of the two-story house, and conversing with an unidentified man. As the officers watched, the CI and Appellant had a brief conversation, after which Appellant got up and entered the house through the unlocked front door. Within minutes, he exited the house, said something to the CI, and dropped an object into the CI's hand. In exchange, the CI gave Appellant the $40.00 buy money. The CI then returned to the officers and gave them eight red-tinted Ziploc bags of marijuana.
Officer Kuhn prepared a search warrant application for 606 West Mayfield Street. On the warrant, the officer listed the owner of record of the property, Aqueelah Barrett. Unaware of Appellant's true identity, Officer Kuhn listed the person observed making the drug deal as "occupant, " and offered the following description: "one black male . . . 28 to 32 years old, dark-complected and . . . bald." N.T., 4/2/12, at 86.
On August 1, 2007, at 9:15 p.m., Officer Kuhn and other officers met to execute the warrant. When no one responded to the officers' knock and announcement that they were serving a bench warrant, they gained entry by using a battering ram on the front door. In the living room, Officer Roberson apprehended Ms. Barrett, who was seated next to her one to two month old infant, who was in a baby carrier. Next to the baby was a large Ziploc bag filed with 272.8 grams of marijuana. From the living room the officer also recovered three scales, a mirror, a sifter and a razor blade. All of these items contained a white powdery residue. Elsewhere on the first floor, the officers confiscated hundreds of unused Ziploc bags with various tints and markings, including red-tinted bags identical to those the CI had delivered to Officers Kuhn and Roberson the day before.
Lieutenant Joseph Bologna proceeded to the second floor of the house accompanied by Officer McDonnel and entered the front bedroom. When the officers lifted the mattress of the bed, they discovered the following: 1) a Tazer; 2) a .45 caliber Ruger loaded with five rounds; 3) a black Cobra Arms .380 with one round in the chamber and six in the magazine; 4) a .40 caliber Taurus with one round in the chamber, ten in the magazine, and two extra magazines; 5) a Hungarian Arms 9-millimeter with one round in the chamber and thirteen in the magazine; and 6) a silver Cobra 9-millimeter, Nodel MAC11, with one round in the chamber and thirty-five in the magazine.
In a drawer in the smaller of the two nightstands, the officers found $1935.00 in cash in various denominations, including the two twenty dollar bills of prerecorded buy money the CI had used to purchase the marijuana from Appellant the day before.
In the same drawer, the officers found a letter addressed to Appellant at 606 West Mayfield Street, a work ticket in Appellant's name, a Pennsylvania identification card for Appellant listing his address as 913 Carver Street, Philadelphia, Pennsylvania, a gas bill for 606 West Mayfield Street addressed to Ms. Barrett, a Chase Bank mortgage statement addressed to Ms. Barrett at an address of 3149 North 26th Street, and two photographs. In one photograph, Appellant and Ms. Barrett were seated together on a ride at Six Flags Great Adventure amusement park. In the other, Appellant and an unidentified man posed in front of a white Cadillac Escalade.
During the search, other officers uncovered a second cache of five firearms in the basement of the house. They found the following: 1) a .380 caliber AMT silver model Backup with a magazine of five rounds; 2) a .22 caliber ERMA LA with a magazine of five rounds; 3) an AR-15 rifle with two magazines containing 30 rounds each; 4) a 7.62 X 39 caliber Norinco MAK-90; and 5) an AK-47. In addition to the weapons, the officers found four bags of ammunition matching the guns.
Also recovered from the basement in the same area as the guns was a black duffle bag containing two rolls of duct tape, a can of pepper spray, two black ski masks with holes cut out for the eyes and mouth, two pairs of black gloves, a fake beard, a fake mustache, a mirror, a bottle of spirit gum, and a bottle of spirit gum remover.
After executing the search warrant for the residence and arresting Ms. Barrett, Officer Kuhn prepared an arrest warrant for Appellant, listing six addresses where he had reportedly lived. Officer Kuhn personally visited three of the houses in search of Appellant. The warrant unit visited the remaining addresses. Although the police had visited the occupants at each location and told Ms. Barrett that Appellant was wanted, Appellant remained at large until May 24, 2009.
During the time preceding Appellant's arrest, the Commonwealth proceeded with its case against Ms. Barrett. On October 22, 2009, the charges against Ms. Barrett were nol prossed.
On April 2, 2012, Appellant's trial began before the Honorable Willis W. Berry, Jr., and a jury. Over the Commonwealth's objection, Appellant moved to introduce evidence of the disposition of Ms. Barrett's case. Appellant's counsel informed Judge Berry of his belief that the charges were nol prossed because "IAD and the Feds" were investigating Officer Kuhn. N.T., 4/2/12, at 60. The parties engaged in a protracted discussion regarding the admission of such evidence. Ultimately, Judge Berry refused Appellant's request to inform the jury of the disposition of Ms. Barrett's case.
Following the close of the case, and during deliberations, the jury sent Judge Berry a note, asking "Where was all the additional ammo found for all guns? Basement?" N.T., 4/4/12, at 4. Appellant's counsel asked Judge Berry to instruct the jury that its recollection controlled. The Commonwealth, noting the variety of firearms and ammunition found in the case, suggested that the court provide the jury with the property receipt for the firearms and the ammunition which had been admitted into evidence as Exhibit C-13, and which listed the location where each item was found. Appellant's counsel objected because the jury had not specifically requested to see the exhibit, as it had done earlier with regard to Appellant's work ticket. Judge Berry opined that the property receipt provided a straightforward answer to the jury's query, and therefore decided to provide the exhibit.
After reviewing the exhibit, the jury sent Judge Berry another question: "Per [Exhibit] C-13, [Ms. Barrett] and [Appellant] are listed as owner (if known). Does this mean owner of the property? Owner of what? Do you have anything on that?" N.T., 4/4/12, at 9. Judge Berry agreed with the Commonwealth that he could not answer the jury's question, but that its own recollection must control its deliberations. Appellant's counsel claimed that the provision of Exhibit C-13 had caused undue confusion, and claimed that the exhibit led the jury to believe that Appellant was the owner of the house where the guns were found, even though Ms. Barrett held legal title to the residence. To counter this perceived confusion, Appellant's counsel demanded that Judge Berry give the jury the mortgage letter and the gas bill recovered from the bedroom as proof that Ms. Barrett owned the house. The Commonwealth responded that neither of these documents established Ms. Barrett's ownership, and, in fact, no documentary evidence had been introduced at trial to establish ownership of the residence. Judge Berry denied Appellant's counsel's request, and instructed the jury that its recollection controlled.
The jury convicted Appellant of possessing marijuana with intent to deliver, criminal conspiracy, using or possessing drug paraphernalia, seven counts of possessing an instrument of crime, and four counts of possessing an offensive weapon. In addition, Judge Berry convicted Appellant for a firearm violation. On June 28, 2012, Judge Berry sentenced Appellant to an aggregate term of ten to twenty years of imprisonment. This timely appeal followed.
Appellant raises the following issues:
[1.] DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION BY GIVING THE JURY A POLICE PROPERTY RECEIPT DURING DELIBERATIONS THAT CONTAINED PREJUDICIAL AND INADMISSIBLE INFORMATION AND BY REFUSING TO GIVE THE JURY DOCUMENTS THAT WOULD HAVE AMELIORATED THE HARM CAUSED BY THE CONTENTS OF THE [PROPERTY RECEIPT]?
[2.] DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION BY DENYING APPELLANT THE RIGHT TO ADMIT EVIDENCE SURROUNDING THE DISPOSITION OF HIS CO-DEFENDANT'S CASE?
Appellant's Brief at 2.
Appellant first claims that the trial court abused its discretion "by giving the jury a property receipt listing [him] as an owner of the property contained on the receipt because the receipt bolstered the testimony of the Commonwealth's primary witness, allowed the jury to draw an adverse inference against [him] regarding whether he constructively possessed the property contained in the receipt, inflated and skewed the importance of the receipt itself, and addressed the primary issue facing the jury during its deliberations." Appellant's Brief at 6. Additionally, Appellant asserts that the jury did not request the property receipt.
Moreover, Appellant argues that the "trial court should have granted [his] request to ameliorate the clear harm generated by giving the property receipt to the jury, " by granting his request to introduce evidence establishing that Ms. Barrett owned the residence in which the guns were found. Appellant's Brief at 6. According to Appellant, "the property receipt permitted the jury to take a short cut in reaching a verdict in that it permitted them to accept the word of the police that [he] owned the property without actually having to decide whether [he] possessed the property." Appellant's Brief at 17.
Rule 646 of the Pennsylvania Rules of Criminal Procedure controls the items that may be given to a jury during deliberations. Rule 646 reads, in pertinent part, as follows:
Rule 646. Material Permitted in Possession of the Jury
(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (C).
(C) During deliberations, they shall not be permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession by the defendant;
(3) a copy of the information or indictment;
(4) except as provided in paragraph (B), written jury instructions.
This Court has recently addressed a trial court's decision to permit an exhibit "to go out with the jury" pursuant to Rule 646 as follows:
Whether an exhibit should be allowed to go out with the jury during its deliberation is within the sound discretion of the trial judge. The underlying reason for excluding certain items from the jury's deliberations is to prevent placing undue emphasis or credibility on the material, and de-emphasizing or discrediting other items not in the room with the jury. If there is a likelihood the importance of the evidence will be skewed, prejudice may be found; if not, there is no prejudice per se and the error is harmless.
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super. 2012). Here, because the property receipt was not specifically prohibited by Pa.R.Crim.P. 646(C), its provision to the jury "falls squarely within the discretion of the trial court and, thus, the decision cannot be overturned absent an abuse of discretion." Id. Thus, the trial court can only have been found to abuse its discretion if its ruling "exhibited manifest unreasonableness, partiality, prejudice, bias or such lack of support as to render it clearly erroneous." Commonwealth v. Bango, 742 A.2d 1070, 1072 (Pa. 1999). "We will not condemn a trial court's ruling as an abuse of discretion merely because we might have reached a different conclusion had the decision been ours in the first instance." Id.
"Pennsylvania courts have permitted a myriad of items to be in the possession of juries during deliberations." Id. "Our courts have rarely found that materials given to juries during deliberations constitute reversible error. In the cases that have found reversible error, however, the prejudicial effect of the evidence in question was severe and readily apparent." Id.
In response to the two questions at issue, the trial court instructed the jury as follows:
Good morning, ladies and gentlemen. I got your notes, and let me start off with the first one, you asked, "Where was the additional ammo found for all guns." And then the other was, "Which weapons were found in the bedroom? Basement?" These were both signed by the foreperson.
We tried to answer those questions because we have information that appeared to be in the evidence in the case. We sent a property receipt out, C-13. And soon after we sent that out, you asked this question:
"Per C-13, [Ms. Barrett] and [Appellant] are listed as the owner (if known). Does this mean owner of the property? Owner of what?" Listen. You want us to recall a question or recall all of the testimony for you, and I'm not going to do that. That's not my job. It's your recollection that controls. You're not investigators on the case.
So it's up to you to find the evidence in this case, find the facts, and then from that evidence and the facts and the law that I give to you, come back with a decision in this case.
So continue your deliberations.
N.T., 4/4/12, at 16-17.
After careful review of the record, as well as pertinent case authority, we cannot conclude that the trial court abused its discretion in permitting the property receipt to go to the jury. The Commonwealth charged Appellant with each gun offense separately. The jury therefore had to determine whether Appellant possessed all eleven guns. The property receipt at issue would aid the jury in making these determinations. In fact, the jury's second question about ownership of the property indicates that the jury would not take the "short cut" suggested by Appellant supra.
Appellant's claim that the trial court should have given copies of documents to the jury tending to establish that Ms. Barrett owned the residence in which the guns were found is inapposite. Documents were introduced by the Commonwealth to establish who had access to the bedroom and basement of the residence where the guns were found. Appellant's request to establish for the jury who owned the residence was never an issue at trial, and was therefore irrelevant. For all these reasons, Appellant's first issue is without merit.
In his second issue, Appellant argues that the trial court abused its discretion by prohibiting him "from presenting testimony at trial showing [Ms. Barrett's] case had been dismissed without a trial because [Officer Kuhn] had been under investigation, which the defense sought to introduce because it tended to show that [Officer Kuhn] had a motive to incriminate [Appellant] and to show a possible bias." Appellant's Brief at 6-7. Appellant asserts that, "it was the intention of the defense to establish that [Ms. Barrett] had her case discharged because Officer Kuhn, the Commonwealth's primary witness, had been under investigation and could not testify against her." Id. at 22.
Our Supreme Court has summarized:
Appellate courts typically examine a trial court's decision concerning the admissibility of evidence for abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Typically, all relevant evidence, i.e., evidence which tends to make the existence or non-existence of a material fact more or less probable, is admissible, subject to the prejudice/probative value weighing which attends all decisions upon admissibility. See Pa.R.E. 401; Pa.R.E. 402[.]
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).
We agree with Appellant that a criminal defendant has a constitutional right "to introduce into evidence and cross-examine a witness to reveal any motive that a witness may have to testify falsely." Appellant's Brief at 23 (quoting Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa.Super. 2008)). Upon careful review of the record, however, we conclude that Appellant proffered insufficient evidence to support his claim of Officer Kuhn's bias or motive. Appellant asserts that "it was imperative for the defense to establish that Officer Kuhn fabricated [Appellant's] involvement [in the] incident in order to curry favor with his superiors and to overcome the fact that [Ms. Barrett] had been discharged due to Officer Kuhn's alleged improprieties." Appellant's Brief at 24.
Unfortunately for Appellant, there was insufficient evidence to support defense counsel's speculation as to the reason for Officer Kuhn's testimony. At the time of Appellant's trial, it was undisputed that although the officer had been the subject of both federal and internal investigations, he had been cleared of any wrongdoing. See N.T., 4/2/12, at 60.
Defense counsel based his theory upon the following notation in Ms. Barrett's criminal docket: "October 15th, 2009, Commonwealth not ready, police officer [failure to appear] pending investigation." Id. at 103-04. The reference to "pending investigation" is ambiguous and subject to many interpretations, not the least of which was, at the time scheduled for Ms. Barrett's trial, the fact that Appellant was recently apprehended, and thus the investigation was still pending. Id. In addition, Appellant conceded that he did not possess any evidence regarding the result of the investigations of Officer Kuhn. Given these circumstances, the record supports the trial court's decision to exclude any evidence regarding the disposition of Ms. Barrett's charges. As stated by the trial court: "[I]n this case we don't have any finding that [Officer Kuhn] was found even in violation of any police violations [sic], in violation of any laws. We just have the word that you have, investigation, ' and nothing more." Id. at 116.
In sum, Appellant's claims that the trial court abused its discretion in permitting a Commonwealth exhibit to go out to the jury, and in excluding alleged evidence of bias on the part of Officer Kuhn is without merit. We therefore affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
Judge Fitzgerald votes Concurs In Result.