Argued, December 9, 2014
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Judgment Entered February 24, 2014, In the Court of Common Pleas of Delaware County, Criminal Division at No(s): CP-23-CR-0007437-2012. Before CAPUZZI, J.
Lawrence R. Dworkin, Wallingford, for APPELLANT.
William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, APPELLEE.
BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.[*]
Donte Mosley appeals from his judgment of sentence, entered in the Court of Common Pleas of Delaware County, after being convicted by a jury of three counts of possession of a controlled substance and one count of possession with the intent to deliver a controlled substance (cocaine). The Commonwealth sought, and the sentencing court applied, the mandatory minimum sentence of five years' imprisonment pursuant to 18 Pa.C.S. § 7508 (drug trafficking sentencing/penalties). Mosley was sentenced to a term of 66-132 months' imprisonment for the intent to deliver charge, an aggravated-range sentence. After careful review, we affirm Mosley's convictions, vacate his judgment of sentence and remand for resentencing.
On August 13, 2012, at approximately 2:00 p.m., Ridley Township Police Officer Leo Doyle was on patrol in the Secane area in response to a complaint about illegal drug activity at the Presidential Square Apartments on South Avenue. James Latticlaw, the complainant, had told the police that squatters were selling drugs out of his apartment. Sergeant Charles Palo and Corporal Daniel Smith, also members of the Ridley Township Police Department, accompanied Officer Doyle to the Secane address in a separate police vehicle. When the two police vehicles arrived at the apartment complex, the police observed a black Cadillac driving towards them and saw Latticlaw pointing toward the Cadillac.
After seeing Latticlaw gesture toward the Cadillac, both police vehicles followed the car as it pulled out of the parking lot. While only a few feet behind the Cadillac, Officer Doyle saw Mosley, the driver of the Cadillac, put his arm out of the driver's side window and drop two clear plastic bags. Corporal Smith picked up the two bags while Officer Doyle activated his siren and police lights and pulled the Cadillac over. Corporal Smith contacted Officer Doyle to tell him the baggies contained narcotics. Doyle arrested Mosley and, in
a search incident to arrest, recovered two cellular phones and $117.00 in cash from his person. Affidavit of Probable Cause, 8/13/12, at 1. No drugs or drug paraphernalia were found on the passenger in the Cadillac.
Prior to trial, Mosley filed a motion to suppress text messages that were viewed by a police officer on the two cell phones confiscated from him during the search incident to his arrest. Ridley Township Police Officer John McDevitt testified that as Mosley was being processed at the police station on the instant charges, the officer viewed texts that kept " popping up" on the screens of the mobile phones. Officer McDevitt first testified that the phones were already powered on and they required no password or other manipulation (like " swiping" ) to view the texts. However, the officer later testified that he was unable to recall whether he had to swipe anything to view the text messages.
Mosley filed a pretrial motion to suppress the search of the two cell phones and the numerous text messages found on them, basing his arguments on authentication and hearsay grounds. Mosley filed a second motion seeking to suppress all data obtained as a result of a subsequent search warrant for the phones. After the suppression hearing, but before the court rendered a decision, Mosley filed a motion to open the hearing in order to present testimony to prove that the texts could not have been viewed by the police unless they took some affirmative action to read them. On April 22, 2013, all pretrial motions were denied.
On September 16-17, 2013, a jury trial was held. At trial, Sergeant Kenneth Rutherford, an expert in the field of drugs and drug investigations, testified for the Commonwealth. Officer Doyle had contacted Sgt. Rutherford about the instant case, gave him basic information about the arrest (including what was confiscated at the stop) and asked the sergeant to prepare a search warrant. In response, Sgt. Rutherford prepared an application for a search warrant, specifically requesting that the contents of the cell phones found on Mosley be searched. Text messages from both cell phones revealed personal messages received by Mosley from friends and family. Several other text messages were indicative of drug related sales/activity. The cell phone report records were marked and admitted into evidence at trial. The trial court gave the jury a limiting instruction on the text messages.
At the conclusion of trial, Mosley was found guilty of possession of a controlled substance (oxycodone), possession of a controlled substance (heroin), possession of a controlled substance (cocaine), and possession with intent to deliver. Mosley was sentenced to 66-132 months' imprisonment, followed by 5 years of state probation. Mosley filed an unsuccessful motion in arrest of judgment and/or for a new trial. This appeal follows.
On appeal, Mosley raises the following issues for our consideration:
(1) Did the lower court err in admitting the hearsay statements testified to by Officer Leo Doyle regarding a telephone call he received as well as a statement made at the scene?
(2) Did the lower court err in allowing evidence of text messages despite the fact that said messages were not properly authenticated, but were also hearsay?
(3) Did the lower court err in failing to suppress evidence of text messages taken from the cellphones by the arresting officers?
(4) Did the lower court err in failing to suppress the information and/or text messages taken from the above cellphones as a result of a search warrant since said evidence was the " fruit of the poisonous tree" ?
(5) Did the lower court err in failing to suppress the said text messages taken pursuant to a search warrant from the cell phones found on the person of the Appellant as a violation of the United States Constitution, Amendments 4 and 14[,] and the Pennsylvania Constitution, Article 1, Section 8[,] for failure to link the items requested to be searched with the alleged crime committed?
(6) Did the lower court err in finding that there was sufficient evidence to uphold the verdict and also err in finding that the verdict was not against the weight of the evidence?
(7) Did the lower court err in failing to reopen the suppression hearing to allow Appellant to introduce evidence contradicting the police officers concerning their reading of the text messages?
(8) Was sentencing the Appellant to a five year mandatory minimum sentence pursuant to 18 Pa.C.S. [§ ]7508 illegal because the statute was unconstitutional? Admission of Officer Doyle's Statements
Mosley asserts that the trial court erred in admitting hearsay evidence regarding " drug activity" offered by Commonwealth witness, Officer Leo Doyle. Officer Doyle was the first officer to appear at the scene to investigate Latticlaw's complaint, which led to him following, stopping and arresting Mosley. Mosley claims that this hearsay testimony was highly prejudicial because it negated his defense (that the passenger in the vehicle was the one who controlled the drugs and not him). Mosley also contends that admission of the testimony was reversible error as evidence of his guilt was not overwhelming.
While certain out-of-court statements offered to explain a course of police conduct are admissible because they are offered merely to show the information upon which police acted, some out-of-court statements bearing upon police conduct
are inadmissible because they may be considered by the jury as substantive evidence of guilt, especially where the accused's right to cross-examine and confront witnesses against him would be nullified. Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808, 810 (Pa. 1989).
Mosley's arresting officer, Officer Leo Doyle, testified at trial regarding a phone call he received from James Latticlaw, who indicated that Mosley and a third party were " squatters" selling drugs out of Latticlaw's apartment. Officer Doyle also testified that when he arrived at the apartment complex to investigate the matter, Latticlaw pointed at the black Cadillac driven by Mosley, indicating to Officer Doyle that the occupants were the two men who had been involved in drug activity at his apartment. Specifically, the prosecutor questioned Officer Doyle at trial as follows:
Q: What area did they make a complaint? A specific type of crime or of a specific incident that happened in a certain place?
Q: What -- what was that?
A: Drug activity.
Q: Drug activity. And what location?
A: At the 640 South. I forget the exact apartment, but James Latticelaw[sic]'s apartment in 640 South ...