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Commonwealth v. Bernard

Superior Court of Pennsylvania

September 4, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
FLOYD R. BERNARD Appellant

          Appeal from the Judgment of Sentence Entered May 22, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002548-2016

          BEFORE: BOWES, J., OLSON, J., and STABILE, J.

          OPINION

          OLSON, J.

         Appellant, Floyd R. Bernard, appeals from the judgment of sentence entered on May 22, 2018, following his bench trial convictions for one count each of criminal attempt to deliver a controlled substance, possession with intent to deliver a controlled substance (PWID), criminal use of a communication facility, possession of a controlled substance, and possession of drug paraphernalia.[1] We affirm Appellant's convictions, vacate his sentences, and remand for resentencing.

         The trial court briefly set forth the facts and procedural history of this case as follows:

[Appellant] was charged [with the aforementioned crimes].
On May 8, 2017, [c]ounsel for [Appellant] filed an omnibus pretrial motion and brief in support thereof. On July 14, 2017, counsel for [Appellant] filed a second brief in support of his omnibus pretrial motion. Following a hearing on May 25, 2017, [the trial] court denied [Appellant's] motion. Pursuant to [the trial] court's December 5, 2017 pretrial order, [Appellant] executed a written waiver of jury trial colloquy on December 13, 2017 and [the trial] court conducted a non-jury trial on December 19, 2017.
During trial, Assistant District Attorney Anthony Martinelli (hereinafter ADA Martinelli) submitted into evidence stipulations regarding the proposed testimony of Officer [Larry] Spathelf, [a] confidential informant [(CI)], as well as the qualifications of Pennsylvania State Police forensic scientist, Lauren Force and the contents of her reports analyzing the heroin packets recovered. First ADA Martinelli submitted [that] Officer Spathelf's testimony would include the following: that on October 25, 2016, he began an investigation into the sale of narcotics in the City of Scranton. During the course of his investigation, he met with a CI, who informed him that he or she knew an individual by the street name of "Flex." The CI relayed that "Flex" traveled to Scranton and delivered heroin. Officer Spathelf explained that the CI arranged a drug transaction with [Appellant] by calling [Appellant's] cell[ular] [tele]phone. The CI and [Appellant] arranged a quantity and a meet location at the former Weis Market located in the 1100 block of South Washington Avenue, Scranton, [Pennsylvania]. Subsequently, Officer Spathelf and the CI traveled to the parking lot of the former Weis Market and [Appellant] arrived in a silver BMW, which the CI identified as the vehicle [Appellant] own[ed] and operate[d].
Furthermore, Officer Spathelf and the CI identified [Appellant] as the individual who arrived in the BMW. Shortly after, Officer Spathelf conducted a search incident to arrest and found the target cell[ular] [tele]phone, $245[.00] in U.S. currency, and twenty-five (25) glassine bags of heroin.
Next, the Commonwealth submitted that the CI's testimony corroborated Officer Spathelf's testimony. Finally, the Commonwealth submitted that Lauren Force, employed by [the] Pennsylvania State Police Forensic Unit, and an expert in the field of chemical analysis of controlled substances tested the twenty-five (25) packets of suspected heroin. She verified that the packets tested positive for heroin. She also represented that [] twenty (20) packets of heroin weighed .009 grams, while five (5) of the bags weighed .006 grams.
Thereafter, [the trial] court indicated it would review the evidence and render [a] verdict. Based upon a delay in the transmission of transcripts, [the trial] court extend[ed the] period to render [its] decision. On January 4, 2018, after receipt of the trial transcripts and consideration of all the evidence presented by the Commonwealth and [Appellant], including a copy of the stipulations as to the forensic testing and lab reports by the Pennsylvania State Police, the intended testimony of Officer [] Spathelf, and forensic scientist, Lauren Force, [the trial] court found [Appellant] guilty on all counts.
On May 22, 2018, after review of [Appellant's] pre-sentence investigation and sentencing guidelines, [the trial] court sentenced [Appellant consecutively] as follows:
Count 1: Criminal attempt to deliver a controlled substance, eleven (11) to twenty-four (24) months [of] incarceration,
Count 2: [PWID], two (2) years of probation,
Count 3: Criminal use of a communication facility, eight (8) to twenty-four (24) months [of incarceration], followed by two (2) years of probation,
Count 4: Possession of a controlled substance, one (1) year of probation,
Count 5: Possession of drug paraphernalia, determination of guilty without further penalty.
On June 1, 2018, [Appellant] filed a timely post-sentence motion seeking merger of Counts [1] and [3] with Count [2]. After a hearing on [Appellant's] post-sentence motion, [the trial] court merged Count [2] and Count [4], but denied merger on all other counts. On August 24, 2018, [Appellant] filed a timely notice of appeal, and on August 27, 2018, [the trial] court directed [Appellant] to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). [The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 16, 2018.]

Trial Court Opinion, 10/16/2018, at 1-4 (record citations and superfluous capitalization omitted).

         On appeal, Appellant presents the following issues for our review:

I. Whether [Appellant] was denied his constitutional rights to a fair trial by the [trial] court's refusal to suppress evidence obtained through the use of a confidential informant that was both unproven as reliable and ...

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