Opinion
No. 1477 EDA 1999.
Filed: May 25, 2000.
Appeal from the Judgment of Sentence Entered December 15, 1998, In the Court of Common Pleas of Carbon County, Criminal No. 260 CR 98.
BEFORE: CAVANAUGH and BECK, JJ., and CIRILLO, P.J.E.
OPINION
¶ 1 Appellant was found guilty of possession with intent to deliver cocaine and related charges in connection with an undercover drug investigation conducted in Carbon County. That investigation included several months of police surveillance at appellant's residence in the Indian Lakes Motel in Albrightsville, which revealed activity consistent with drug sales. During their surveillance, police observed people coming and going from the building on a regular basis.
¶ 2 Appellant lived with his girlfriend and his co-defendant, Anthony Cabey, in one unit of a four-unit building. Police believed that the residents in three of the four units were involved in drug trafficking and arrested the residents of the other two units. Those individuals testified against appellant and Cabey, as did appellant's girlfriend. At trial, the Commonwealth witnesses testified that appellant and Cabey regularly sold drugs. In addition, undercover officers purchased drugs directly from appellant. On the date of appellant's arrest, police executed a warrant for the search of his residence, as well as a warrant for his arrest.
¶ 3 Police announced their presence and entered the residence to find appellant exiting the bathroom after flushing the toilet. A single bag of cocaine was found on appellant's person, as was nearly $1,500.00 in cash. Police then went outside the premises and searched the sewer line that led directly from the building in which appellant lived. After flushing the toilet in appellant's unit several times, police discovered thirty nine bags of cocaine in the sewer line.
¶ 4 Appellant raises a number of claims on appeal. He first claims that the search of the sewer pipe outside the building violated his federal and state constitutional rights to privacy, and therefore, the drugs police found in the sewer line should have been suppressed. Within this claim, he includes a number of issues, including his assertion that the search warrant did not cover the sewer pipe, no exigent circumstances existed, and there was no proof that the cocaine that was retrieved came from the toilet in his unit.
¶ 5 To begin, appellant cannot prevail on any of those claims. By flushing the contraband down the toilet, he clearly abandoned any right to privacy he may have had in it. Furthermore, he has offered no credible theory to support his claim of a reasonable right to privacy in the sewer pipe system located some eighty feet outside his multi-unit motel residence. Even if we were to assume that appellant has a right society recognizes as reasonable and he has not abandoned it, the facts of this case indeed reveal exigent circumstances, making the need for a search warrant specifying the sewer pipes unnecessary. Appellant, an individual from whom police had purchased drugs, flushed something down the toilet seconds after police knocked on his door and announced their intention to enter and search. The destruction of relevant evidence surely constituted exigency under these facts. Commonwealth v. Govens, 632 A.2d 1316 (Pa. Super. 1993), appeal denied, 539 Pa. 675, 652 A.2d 1321 (1994).
¶ 6 Finally, the trial transcript reveals that the methods of retrieval utilized by police, and those assisting them, were careful, thorough and complete. While the inference that the drugs belonged to appellant was established by circumstantial rather than direct evidence, proof of possession was indeed presented by the Commonwealth and properly accepted by the suppression court. Appellant simply cannot prevail on his claim that the evidence seized in the sewer pipe should have been suppressed.
¶ 7 Appellant next argues that the trial court erred in permitting the Commonwealth to introduce evidence of his prior drug sales to police. Relying on the rule of law that prior criminal conduct is inadmissible to establish guilt, appellant claims that the prejudicial effect of the evidence outweighed its probative value.
¶ 8 Appellant cannot prevail on this claim as the record makes clear the purpose for admitting the challenged evidence was proper. The prosecutor offered the evidence to establish that the drugs were not for mere personal use, but instead were destined for sale and distribution to others. The trial court specifically instructed the jury on the limited use of the evidence. We find the admission of this evidence for the purpose offered was not an abuse of discretion and so appellant is not entitled to relief. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998) (test for admission of evidence is whether trial court abused its discretion in ruling on admissibility), cert. denied, ___ U.S. ___, 120 S.Ct. 97 (1999).
We observe that in his direct appeal to this court, appellant's co-defendant Anthony Cabey raised the same issue and asserted the same grounds for relief. Another panel of this court found the claim meritless for the same reasons we do here. Commonwealth v. Cabey, No. 1436 EDA 1999, Pa. Superior Court (December 1, 1999).
¶ 9 Appellant next insists that the trial court erred in excluding expert testimony on the issue of "the time required to flush an average toilet." Appellant's Brief at 5. Appellant's expert did not offer testimony regarding the toilet in appellant's unit; instead, he sought to testify about toilets in general. The trial court disallowed the testimony as irrelevant. Upon review of the record, we agree and find no abuse of discretion. Further, we observe that even if exclusion of the evidence was unwarranted, any error would be harmless. The Commonwealth witnesses who testified about the retrieval of drugs from the sewer line were cross-examined at length. In light of the record, and the limited use of the proffered expert evidence, we conclude that appellant's expert testimony would not have affected the verdict in this case.
¶ 10 Appellant next claims the court erred in failing to grant his motion for acquittal. His argument appears to be one sounding in sufficiency of the evidence. Viewing the evidence, as we must, in the light most favorable to the Commonwealth, we are certain it was sufficient to support the charges of which appellant was found guilty. Commonwealth v. Carson, 592 A.2d 1318 (Pa.Super.), appeal denied, 529 Pa. 616, 600 A.2d 533 (1991). Appellant's sufficiency claim fails.
To the extent that appellant's claim in this regard may be characterized as a weight of the evidence claim, we likewise reject it. Assuming for the sake of argument that a weight claim was properly preserved in this case, we make the following observations with respect to appellant's claim that the evidence was "weak." We do not determine the credibility of the witnesses. That task is for the jury, who in this case accepted the Commonwealth's version of events. Because the record supports the convictions, we find no relief is due.
¶ 11 Appellant's final claim concerns his sentence. In a supplemental brief, appellant argues that his sentence was illegal because it included an enhancement prohibited by law. In support of his claim, he relies on Commonwealth v. Vasquez, 726 A.2d 396 (Pa.Super.), appeal granted, ___ Pa. ___, 740 a.2d 233 (1999).
¶ 12 The record establishes that appellant, at the time he was sentenced for the offenses in this case, had pled guilty to other drug charges committed in Carbon County. From the sentencing transcript, it appears that the prosecutor conceded that the Carbon County charges were committed after appellant's arrest in this case. Thus, despite the timing of the offenses, appellant had an outstanding conviction for drug trafficking violations on the date of sentencing in the instant case. In light of that conviction, the Commonwealth gave notice of its intention to seek an enhanced sentence.
The record does not reflect whether, at the time he appeared for sentencing in this case, appellant had been sentenced for the Carbon County charges — only his conviction is noted. However, we conclude from the nature of appellant's argument that sentencing in Carbon County already had occurred and appellant was not subject to an enhanced sentence in that county.
¶ 13 The applicable statute provides that a criminal defendant convicted of drug trafficking offenses is subject to an increased sentence "if at the time of sentencing the defendant has been convicted of another drug trafficking offense." 18 Pa.C.S.A. § 7508.
¶ 14 Appellant maintains that he is not subject to the enhanced sentencing provisions of § 7508 because the outstanding conviction relied upon by the Commonwealth was based on conduct that occurred after his arrest in this case. Hence, reasons appellant, the instant charges cannot be deemed a second or subsequent offense warranting enhancement.
¶ 15 Appellant's reliance on Vasquez in this context is misplaced. Vasquez involved a two-count indictment arising out of a single arrest. Prosecutors in that case sought to have the appellant's sentence enhanced for one of the counts due to his outstanding conviction on the other count. A panel of this court rejected such an interpretation of § 7508 stating:
"Thus we hold that for the enhancement provisions of § 7508 to apply, one of the relevant `offenses' must have been committed subsequent to a prior arrest for a drug trafficking offense." Id. at 400.
¶ 16 It is clear that the Vasquez court was troubled by the fact that there was but a single arrest in that case. Plainly, the court explained, § 7508 was enacted to address those "who persevered in criminal activity," by committing an additional drug crime after being arrested for a first one. Id. at 398. With respect to the timing of the offenses, and the timing of the court proceedings that followed, the Vasquez court reiterated the rule already set forth by our supreme court:
The Williams and Plass cases established that the sequential timing of conviction and sentencing for separate offenses was no longer the determining factor but rather whether the defendant, at the time of the sentencing in question, had an outstanding conviction for another drug trafficking offense.
* * *
Thus, whether the sentencing that evidenced a prior conviction was for commission of the first offense as opposed to the second . . . was immaterial.
Id. (citations omitted).
¶ 17 In this case, appellant appeared for sentencing with an outstanding conviction for drug trafficking in Carbon County. Hence, he was subject to the enhanced sentencing provisions of § 7508. Our supreme court has made it clear that the fact that the Carbon County charges occurred second in time is of no moment. See Commonwealth v. Williams, 539 Pa. 249, 652 A.2d 283 (1994). See also Commonwealth v. Plass, 539 Pa. 249, 652 A.2d 283 (1994). Vasquez instructs that the purpose of such a rule is to prevent a windfall to the defendant in the case where, "due to the fortuitous delay in trial on the first offense, the defendant had not yet been convicted prior to committing a second offense." Vasquez, supra at 398 (citations omitted). It appears that appellant is the very type of person at which the rule is aimed. Hence, appellant is not entitled to relief on his sentencing claim.
¶ 18 Judgment of sentence affirmed.