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Commonwealth v. Clemat

Superior Court of Pennsylvania

September 4, 2019


          Appeal from the Judgment of Sentence Entered October 22, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002687-2017

          BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         Appellant, Pierre Clemat, appeals from the judgment of sentence entered by the Honorable Michael J. Barrasse in the Court of Common Pleas of Lackawanna County following Appellant's conviction by a jury on the charges of possession with the intent to deliver a controlled substance ("PWID") and possession of drug paraphernalia.[1] After a careful review, we affirm.

         The relevant facts and procedural history have been set forth, in part, by the trial court as follows:

[Appellant's] charges stemmed from a November 15, 2017[, ] incident wherein Lackawanna County and Dunmore Police Detectives were investigating a prostitution ring. Specifically, the Detectives found an escort on the internet and arranged to meet with her for an appointment in Room number 416 at the Four Points Sheraton Hotel in Scranton. The escort, eventually identified as Derrian Regan (hereinafter "Regan"), agreed to a rate of $160.00 per half hour of services with the Detectives via text message. Upon arriving at the Four Points Sheraton Hotel, Regan accepted $160.00 in exchange for a sexual act, and officers immediately placed Regan under arrest. While being transported, officers observed Regan notify an unknown male of her arrest. Subsequently, officers observed the male, later identified as Appellant, walk towards the hotel and throw a plastic bag into a nearby shrub. Thereafter, the officers recovered multiple, individual twist bags containing heroin inside the plastic bag discarded by Appellant. Immediately, the officers Mirandized and placed Appellant into custody. After a custodial search of Appellant, officers recovered two (2) Apple IPhones and $1, 460 of U.S. currency. Officers transported Appellant and Regan to the Dunmore Police Station. During questioning, Regan admitted that she dates Appellant and he provides her [with] heroin.
Accordingly, on July 10, 2018, a jury trial commenced wherein the Commonwealth presented several witnesses. Forensic Scientist Jennifer J. Libus, a lab technician with the Pennsylvania State Police Wyoming Regional Laboratory, testified that she tested the contents of the individual baggies and determined that the baggies contained fifty-four (54) grams of Fentanyl. Ms. Libus testified that she has been qualified as an expert in the field of drug identification and analysis in the Commonwealth of Pennsylvania, and has rendered her opinion in criminal cases over 150 times.
Additionally, Dunmore Police Detective Corey Condrad, a Supervisor of the Drug Unit, testified that he observed Appellant dispose of a plastic baggie containing Fentanyl into the bushes of the hotel parking lot. He also testified to the recovery of $1, 460 in U.S. currency and two (2) cell phones found on Appellant. Detective Condrad further testified that the suspected narcotics were packaged into evidence and transported to the Pennsylvania State Police Wyoming Crime Lab.
Similarly, Detectives Vince Butkiewicz and Thomas Davis of the Lackawanna County District Attorney's Office corroborated Appellant's discarding of the plastic bag, the search of Appellant, and recovery of the suspected narcotics. Furthermore, Detective Harold Zech of the Lackawanna County District Attorney's Office testified as an expert regarding factors that show an intent to deliver as well as tools utilized by dealers within the drug trade. In this case, Detective Zech opined that the quantity of Fentanyl recovered demonstrated Appellant possessed the Fentanyl with the intent to deliver rather than possess for personal use. He further testified that typical factors of possession with intent to deliver include large amounts of cash and multiple cellular phones. He noted that officers recovered both items on Appellant's person.
Upon conclusion of all testimony, and all evidence presented, the jury convicted [Appellant] of one (1) count of Possession of a Controlled Substance with Intent to Deliver (50 to 100 grams of Fentanyl) and one (1) count of Possession of Drug Paraphernalia. [The trial] court requested a pre-sentence investigation report, and upon thorough review as well as consideration of the sentencing guidelines, including all mitigating and aggravating factors, [the trial] court sentenced [Appellant] on October 22, 2018[, ] [to 84 months to 168 months in prison, plus five years of probation, for PWID, and six months to twelve months in prison for possession of drug paraphernalia.]
[The trial] court imposed consecutive sentences which aggregated to ninety (90) to one hundred and eighty (180) months of incarceration followed by five (5) years of probation supervised by the Pennsylvania Board of Probation and Parole.
On November 1, 2018, Appellant filed a Motion for Reconsideration of Sentence, alleging that this Court imposed an excessive sentence and erroneously relied upon factors contemplated by the guidelines. [The trial] court denied Appellant's Motion on November 13, 2018, and [Appellant] filed a timely Notice of Appeal…on November 29, 2018.

Trial Court Opinion, filed 5/6/19, at 2-5 (citations to record omitted).

         The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

         On appeal, Appellant sets forth the following issues in his "Statement of the Questions Involved" (verbatim):

1) Whether the trial court erred when it did not strike Juror number 20 for cause, as she was likely biased due to a recent drug-related overdose of a very good friend?
2) Whether the trial court erred when it allowed Lackawanna County District Attorney Detective Harold Zech to testify as an expert witness:
a. despite the fact the Commonwealth did not timely and properly disclose their intent to call Detective Zech as an Expert Witness; and
b. despite the fact the Commonwealth had full knowledge it planned to call Detective Zech as an expert witness but failed to disclose the fact (including subject matter) until the Friday before Trial?
3) Whether the trial court erred when it allowed Detective Zech to improperly testify as an expert since the matter to which Detective Zech testified did not require a person qualified in a specific science, art, or trade?
4) Whether the trial court erred when it allowed Detective Zech to testify as an expert witness despite the fact that Detective Zech was personally and directly involved in the arrest of Appellant?
5) Whether the trial court erred when it allowed Detective Zech to testify beyond the scope of his expert report, as no report was produced?
6) Whether the trial court erred when it allowed Detective Zech to answer questions specifically related to the case, posed as thinly veiled "hypothetical" questions, which covered subject matter reserved for the jury (notwithstanding the fact that Detective Zech was testifying as an expert witness)?
7) Whether the Judge abused his discretion in sentencing Appellant to the aggravated range by impermissibly relying on factors already considered in the sentencing guidelines, specifically the weight and nature of the substance, essentially multiplying those factors against Appellant twice[?]

Appellant's Brief at 3-4.[2]

         In his first issue, Appellant contends the trial court erred when it failed to strike Juror number 20 for cause. Specifically, Appellant contends that, since Juror number 20 admitted that her "very good friend" died from a drug-related overdose just two weeks prior to Appellant's trial, the trial court should have presumed the likelihood that she was prejudiced, and consequently, the trial court should have granted Appellant's request that she be stricken for cause.

         In developing his claim, Appellant points to the following excerpt from voir dire:

[DEFENSE COUNSEL]: So, I just have a few additional questions. Again, this case involved possession with intent to deliver a controlled substance. Now, has anyone here had a loved one that died as a result of addiction or substance abuse?
And your number is, ma'am?
JUROR 20: 20.
[DEFENSE COUNSEL]: Can you explain the circumstances?
JUROR 20: A very good friend of ours just passed away two weeks ago.
[DEFENSE COUNSEL]: Very recent.
JUROR 20: Yes.
[DEFENSE COUNSEL]: Would that fact prevent you from being a fair and impartial juror?
JUROR 20: No.
[DEFENSE COUNSEL]: Is there any other additional factors that any one of you feel that would lead you to not be a fair and impartial juror in this matter? No? Okay, let the [record] reflect that the answer is in the negative. Thank you. That's all I have.

N.T., 7/10/18, at 12-14, 16.

A trial court's decision regarding whether to disqualify a juror for cause is within its sound discretion and will not be reversed in the absence of a palpable abuse of discretion. Commonwealth v. Stevens, 559 Pa. 171, 197, 739 A.2d 507, 521 (1999). In determining if a motion to strike a prospective juror for cause was properly denied our Court is guided by the following precepts:
The test for determining whether a prospective juror should be disqualified is whether he [or she] is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor....It must be determined whether any biases or prejudices can be put aside on proper instruction of the court....A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct or answers to questions.

Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 332-33 (2011) (some quotations omitted).

         Here, in explaining the reasons it denied Appellant's request that Juror number 20 be stricken for cause, the trial court indicated the following:

[J]uror number twenty (20) stated during jury selection that her friend recently succumbed to a drug overdose. However, she assured [the trial] court that she remained a fair and impartial juror. Because of the juror's demeanor and unequivocal response, as well as the juror's lack of fixed opinion, obvious bias, or relationship to any of the parties, victims, or witnesses, [the trial] court did not disqualify the juror. Juror 20 did not visibly manifest distress nor did she express substantial doubt. In fact, [the trial] court recognized that the underlying case did not involve an overdose or overdose victim so as to trigger a close situational relationship to the juror. See Commonwealth v. Johnson, 445 A.2d 509, 514 (Pa.Super. 1982) (finding that prospective juror's close relationship to a victim of a separate crime did not compel a finding of prejudice in every case). Furthermore, cognizant of the protections provided by peremptory challenge, Appellant had the opportunity to strike [J]uror number 20 if so inclined, and Appellant chose to retain [J]uror [number] 20 on the panel. Commonwealth v. Jackson, 562 A.2d 338 (Pa.Super. 1989) [(en banc)] (holding the primary function of a peremptory challenge is to allow the parties to strike prospective jurors whom they have good reason to believe might be biased, but who are not so clearly and obviously partial that they could otherwise be excluded from the panel). As such, [the trial] court acted within its discretion and did not err in failing to dismiss for cause since the prospective juror assured [the trial] court of her ability to act impartially.

Trial Court Opinion, filed 5/6/19, at 5-6.

         Given Juror number 20's responses, the trial court did not commit an abuse of discretion in disallowing Appellant's challenge for cause. See Briggs, supra. It was the trial judge who was in the best position to assess the credibility and fitness to serve of the prospective juror. See Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 107 (1996) (holding trial court may properly refuse to excuse a juror for cause when the trial judge believes that the juror would be fair and impartial).

         Furthermore, the fact Juror number 20 had a "very close friend" who had recently died from a drug-overdose is not dispositive given the juror's indications that she could be fair and impartial. See Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 683 (2009) ("[T]he fact that the prospective juror's son was killed and his murderer was tried before the same judge who was presiding over Appellant's [murder] trial is not dispositive given the prospective juror's indications that she ...

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