Opinion
2124 EDA 2020 2135 EDA 2020 J-A15042-21
09-21-2021
COMMONWEALTH OF PENNSYLVANIA v. RUSSELL BRINSON Appellant COMMONWEALTH OF PENNSYLVANIA v. RUSSELL BRINSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 6, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46- CR-0006298-2017, CP-46- CR-0004720-2017
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM
MUSMANNO, J.
Russel Brinson ("Brinson") appeals from the judgments of sentence imposed following his convictions of one count each of possession with intent to deliver heroin, possession with intent to deliver cocaine, possession of heroin, possession of cocaine, and two counts of criminal use of a communication facility under Docket Number CP-46- CR-004720- 2017("4270-2017"); and one count each of possession with intent to deliver heroin, possession with intent to deliver cocaine, possession of heroin, possession of cocaine, and criminal use of a communication facility under Docket Number CP-46- CR-006298-2017 ("6298-2017"). After careful review, we affirm in part and vacate and remand in part.
Prior to trial, Brinson filed an Omnibus Pretrial Motion, and several supplemental Motions, seeking, inter alia, to suppress all physical evidence and statements he made to police. The trial court held a hearing and denied the Motions. The trial court set forth findings of fact and evidence presented at the suppression hearing and Brinson's trial, and we adopt those findings as if set forth fully herein. Trial Court Opinion, 8/16/19, at 3-8 (attached and referred to in Trial Court Opinion, 1/15/21, at 2).
Following a consolidated bench trial, Brinson was convicted of the crimes set forth above. The trial court sentenced Brinson under both dockets on May 6, 2019. Under docket number 4720-2017, the trial court sentenced Brinson to twenty-one to forty-two months in prison for possession with intent to deliver heroin, a consecutive sentence of eighteen to forty-two months in prison for possession with intent to deliver cocaine, and twelve to twenty-four months in prison for each count of criminal use of a communication facility, to be served concurrently with each other, and concurrently with his sentences for possession with intent to deliver. The trial court imposed no further penalty on the other counts.
Under docket number 6298-2017, the trial court sentenced Brinson to twenty-one to forty-two months in prison for possession with intent to deliver heroin, a consecutive sentence of eighteen to forty-two months in prison for possession with intent to deliver cocaine, and twelve to twenty-four months in prison for the criminal use of a communication facility, to be served concurrently with his sentences for possession with intent to deliver. The trial court imposed no further penalty on the other counts. Brinson's sentences at each docket were to run consecutively, for an aggregate sentence of seventy-eight to one-hundred sixty-eight months in prison. Brinson was also assessed costs at each docket number.
Despite convictions under two docket numbers, Brinson originally filed a single Notice of Appeal, in violation of Commonwealth v Walker, 185 A.3d 969 (Pa. 2018), and its progeny. Brinson ultimately discontinued his direct appeal and filed a Post Conviction Relief Act ("PCRA") Petition seeking the reinstatement of his direct appellate rights, nunc pro tunc. On October 20, 2020, the PCRA court granted Brinson's Petition and reinstated his direct appellate rights, nunc pro tunc. Brinson filed Notices of Appeal at both docket numbers, as well as a court-ordered Pa.R.A.P. 1925(b) Statement of Matters complained of on appeal.
Brinson presents the following questions for our review:
A. Did the suppression court commit an error of law by denying [Brinson's] Motion to Suppress physical evidence and statements?
B. Did the Commonwealth fail to present sufficient evidence to sustain [Brinson's] conviction of [possession] and possession with intent to deliver cocaine[, ] because it did not prove that the substance was cocaine?
C. Did the sentencing court impose an illegal sentence by imposing the cost of prosecution twice on [Brinson]?
D. Did the trial court deprive [Brinson] of due process of law by failing to provide him with a bill of costs?
Brief for Appellant at 3 (capitalization omitted).
In his first question, Brinson argues that the trial court erred when it denied his Motion to Suppress. Brief for Appellant at 17. In support, Brinson argues that the trial court erred when it denied his Motion to suppress the drugs, cell phones, statements, and information contained in the cell phones, because the police lacked probable cause to conduct the warrantless arrest on May 9, 2017, which led to the discovery of the above items. Id. Specifically, Brinson argues that the information from the confidential informant ("CI") was stale because it was received by police three months before they began their investigation. Id. at 25. In support, Brinson relies on Commonwealth v. Novak, 335 A.2d 773 (Pa. Super. 1975). Brief for Appellant at 17. He further alleges that the information acquired from the CI did not establish probable cause to arrest him because the Commonwealth failed to present evidence connecting Brinson to the phone number provided, and he was not observed engaging in any criminal conduct before he was arrested. Brief for Appellant at 18. Brinson avers that the Commonwealth failed to corroborate and confirm the phone number that the CI provided belonged to Brinson prior to his arrest. Id. at 22.
Brinson further argues that probable cause was not established when Agent Shurr observed him in the area of the arranged buy because, inter alia, Brinson did not arrive at the area for an hour; he was not at the "site" of the arranged deal; he lived near the area of the buy; Agent Shurr testified that he often saw Brinson in Norristown; no drug exchanges occurred; and Brinson was not observed speaking on a cellular telephone or otherwise engaging in criminal conduct. Brief for Appellant at 27-30. Finally, Brinson argues that because he was illegally arrested, his volunteered statement should have been suppressed as it was fruit of the illegal arrest. Id. at 32. As discussed infra, probable cause for the warrantless arrest was established.
Our standard of review of the denial of a motion to suppress evidence is as follows:
[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on [the] appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the [trial court are] subject to plenary review.Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019) (quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012)). "Further, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress." Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa. Super. 2017) (citation omitted). Finally, it is within the suppression court's sole province as factfinder to determine the credibility of witnesses and the weight that should be given to their testimony. Id.
In its Opinion, the trial court addressed Brinson's claim and concluded that it lacks merit. Trial Court Opinion, 8/16/19, at 8-10. We find no error or abuse of discretion in the trial court's analysis on this issue and affirm on this basis with regard to this claim, with the following addendum. See id.
Concerning Brinson's claim that the information provided by the CI was stale because it was received by police three months before their investigation, we note in the instant case the police corroborated the CI's information, which occurred within forty-eight hours of Brinson's arrest. To the extent Brinson relies on Commonwealth v. Novak, 335 A.2d 773 (Pa. Super. 1975), this case is factually distinguishable. In Novak, this Court found that probable cause for a search warrant was not established where the information from the CI was received more than a month before the warrant was issued, and no evidence of continued illegal activity was presented. Novak, 335 A.2d at 775.
In the instant case, the CI's tip was corroborated within forty-eight hours of Brinson's arrest. Here, the police contacted Brinson less than two days before he was arrested, via the phone number provided by the CI, and were able to purchase heroin using the terminology provided by the CI. N.T. (Suppression Motion) 9/28/18, at 44. Under such circumstances, any stale information from the CI was rendered viable. See Commonwealth v. Karns, 566 A.2d 615 (Pa. Super. 1989) (finding that probable cause was established where there was a showing that the illegal activity was occurring up to the issuance of the warrant). See also Commonwealth v. Haggerty, 564 A.2d 1269, 1272 (Pa. Super. 1989) (recognizing that a "[m]ere lapse in time between discovery of criminal activity and issuance of a search warrant will not necessarily dissipate probable cause and a showing that criminal activity is likely to have continued up to the time of issuance of a warrant will render otherwise stale information viable").
Brinson next argues that the evidence was insufficient to sustain his convictions for possession of cocaine and possession with intent to deliver cocaine at docket number 6298-2017, because the Commonwealth failed to prove that the substance at issue was cocaine. Brief for Appellant at 33. In support of his sufficiency claim, Brinson argues that the substance was identified as N-Ethylpentylone, a Schedule 1 substance, and not cocaine. Id. (citing N.T. (Trial), 1/24/19, at 11-14). Brinson posits that the allegation in the Information does not match the evidence presented at trial; therefore, those charges should be dismissed. Id.
[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations and quotation marks omitted).
Brinson's argument misstates the record. A review of the record reveals that the only substances tested by the lab at docket number 6298-2017 were found on the victim, and taken from the wax paper bags filled with suspected heroin and stamped "Godzilla." N.T. (Trial), 1/24/19, at 11-12; Id. at Exhibit C-3. Indeed, the lab report did not test any substance that was purported to be cocaine or sold to Bazemore as cocaine. During trial, the Commonwealth stated that the "The heroin [Brinson] sold to Bazemore for the victim was tested by NMS Labs …." N.T. (Trial), 1/24/19, at 13-14. Neither the lab report nor the notes of testimony make any reference to testing the cocaine sold or given to Bazemore by Brinson. Thus, to the extent Brinson argues that a substance, alleged to be cocaine, was revealed to be N-Ethylpentylone, that argument is not supported by the record.
A review of the record and the Affidavit of Probable Cause establishes that Tara Bazemore ("Bazemore") told the victim that Bazemore wanted the victim to buy Bazemore "a hard" (slang for crack cocaine), in addition to the heroin Bazemore was purchasing for the victim. N.T. (Trial), 1/24/19, at 13. Bazemore kept the crack cocaine as payment for facilitating the drug deal between Brinson and the victim. Id. Thus, the record reflects that Bazemore did not deliver any crack cocaine to the victim. Id. at Exhibit C-4.
Moreover, per Brinson's stipulation, it was uncontradicted at trial that Brinson sold Bazemore ten dollars' worth of cocaine and provided her another bag of cocaine gratis as a "thank you" for arranging the sale of heroin to the victim. N.T. (Trial), 1/24/19 at 13. The sale to Bazemore occurred two days before Brinson was apprehended with cocaine and heroin following the controlled buy at docket number 4720-2017. Id. at 9. Samples of the recovered drugs at docket number 4720-2017 were lab tested and confirmed to be cocaine and heroin. N.T. (Trial), 1/24/19, at Exhibit C-1.
All of the above evidence, taken together in the light most favorable to the Commonwealth, established that Brinson delivered cocaine to Bazemore. See Commonwealth v. Lawson, 671 A.2d 1161, 1165 (Pa. Super. 1996) (stating that "[t]he identity of illegal narcotics may be established by circumstantial evidence alone, without any chemical analysis of the seized contraband."). Brinson is due no relief on his sufficiency of the evidence claim.
Brinson's third and fourth issues, which we will address together, relate to costs imposed upon him. In his third issue, Brinson argues that based upon a review of docket numbers 4720-2017 and 6298-2017, numerous costs appear to have been imposed more than once. Brief for Appellant at 37-38. Brinson argues that because the cases were consolidated for trial, costs should have only been imposed in one case, not both. Id. at 38.
In his fourth issue, Brinson submits that this case must be remanded for resentencing because he was not provided a copy of the bill of costs, but rather, the trial court-imposed costs "without delineating what the costs were and the amounts attributable thereto." Id. Brinson argues that this failure constitutes a violation of his right to due process. Id. Brinson asserts that a defendant may only be required to pay costs authorized by statute, and those costs must be reasonable. Id. at 39. Brinson further argues that in order to determine whether the costs are reasonable, they must be itemized. Id. Brinson asks that we vacate the Order imposing costs and remand the matter for resentencing. Id. at 40.
In its brief, the Commonwealth concedes that there should only be one set of costs per case, so any duplicative costs should be vacated. Commonwealth's Brief at 24. As to Brinson's argument that his due process rights were violated because the lower court did not provide him with a bill of costs, the Commonwealth counters that Brinson waived this issue, because he failed to raise the issue at sentencing, in a post-sentence motion, or in his first Rule 1925(b) Concise Statement. Id. at 28. The Commonwealth argues that although the imposition of costs is a non-waivable challenge to the legality of his sentence, Brinson's constitutional claim is waived. Id. at 29.
Where an appellant argues that the trial court did not have the authority to impose the costs at issue, this Court has held such an argument implicates the legality of the sentence. Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa. Super. 2010). A claim raising the legality of the sentence is non-waivable and may be raised for the first time on appeal. Commonwealth v. Bezick, 207 A.3d 400, 403 (Pa. Super. 2019).
In its Opinion, the trial court noted that Brinson was ordered to pay the costs of prosecution for counts one (possession with intent to deliver heroin) and two (possession with intent to deliver cocaine) at docket number 4720-17, and counts one (possession with intent to deliver heroin) and two (possession with intent to deliver cocaine) at docket number 6298-17. Trial Court Opinion, 1/15/21, at 4. The trial court noted that the Commonwealth did not provide a bill of costs at sentencing, itemize the costs, or order Brinson to pay a specific amount. Id. Thus, the trial court stated that it is without knowledge whether the clerk of courts imposed illegal costs on Brinson and would hold an evidentiary hearing on remand if this Court determines the issue is of merit. Id.
Indeed, a review of the dockets reveals a number of costs and fees which appear duplicative of one another. Given that both dockets involved in this case involve the same crimes (possession with intent to deliver cocaine and heroin, possession of cocaine and heroin, and criminal use of a communication facility), and the cases were consolidated and tried together, a single set of costs should have been imposed. See Commonwealth v. Adams, 421 A.2d 778, 779 (Pa. Super. 1980), (concluding that where the appellant was convicted of nine thefts, which were of similar character, those thefts could have been charged in one information and, therefore, only a single set of costs should have been assessed to the appellant.)
Our review further discloses that the costs assessed at the individual dockets are not identical - the total cost is $2, 789.75 at docket 4720-2017 and $2, 211.75 at docket 6298-2017. As set forth supra, it is unclear which costs are duplicative. Thus, we vacate the judgment of sentence and remand to the trial court for a hearing to determine the costs that were illegally assessed against Brinson, after the Commonwealth provides the trial court and Brinson with a bill of costs to facilitate that review. Because the trial court's determination of costs does not impact the sentencing scheme, we vacate only that portion of the judgment of sentence.
Judgment of sentence affirmed on part and vacated in part. Case remanded for further proceedings consistent with this Memorandum. Superior Court jurisdiction relinquished.
Judgment Entered.