Opinion
J-S79032-18 No. 1004 MDA 2018
02-28-2019
COMMONWEALTH OF PENNSYLVANIA v. JAMES L. FLOWERS, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 14, 2018 in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000033-2017 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
James L. Flowers, Jr. ("Flowers"), pro se, appeals from the judgment of sentence entered following his conviction of delivery of a controlled substance (heroin) and criminal conspiracy. We affirm.
The trial court summarized the relevant history underlying the instant appeal as follows:
A jury trial was held on April 3, 2018, on the [above-described charges]. During the trial, [Flowers] chose to act pro se. Robert Reedy, Esquire[,] was appointed as stand[-]by counsel. During the trial, the Commonwealth presented evidence and testimony related to a transaction for the sale of heroin that occurred on August 26, 2016[,] at the residence located at 511 East Market Street, Pottsville, PA. Trooper Christopher C. Keppel [("Trooper Keppel")] testified that on that date[,] he was working undercover for the Pennsylvania State Police. He arranged to meet Brittany Geisinger [("Geisinger")] to purchase heroin. He met her at the parking lot next to 511 East Market Street. He entered that residence with [] Geisinger and they waited until [Flowers] and a
white male entered. [Flowers] discussed with [] Geisinger who he was. Trooper Keppel then testified that he conversed with [] Flowers about people they both knew. Trooper Keppel testified that [Flowers] obtained an item from the white male and handed it to him. Trooper Keppel gave [Flowers] $250.00. He then paid [] Geisinger a finder's fee of $40.00. The Commonwealth presented evidence that the item that Trooper Keppel received was heroin.Trial Court Opinion, 8/17/18, at 1-2.
A jury subsequently convicted Flowers of the above-stated charges. With the benefit of a pre-sentence investigation report, the trial court sentenced Flowers to a prison term of two to four years for his conviction of delivery of a controlled substance. For his conviction of criminal conspiracy, the trial court imposed a concurrent prison term of two to four years. The trial court credited Flowers for the time he served in jail between December 26, 2016, and April 10, 2017 (109 days). Thereafter, Flowers filed the instant timely appeal. On June 18, 2018, Flowers filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. On June 25, 2018, Flowers filed an "Amended Petition for 1925(b) Statement."
Flowers presents the following claims for our review:
I. Did the trial court abuse [its] discretion thus, violating [Flowers's] right to due process, which resulted in prejudice under [Pennsylvania] Rules of Criminal Procedure 571 and 587[,] by ignoring [his] Motion to Dismiss without [a] hearing or directing the Commonwealth to show cause?
II. Did the trial court abuse its discretion pursuant to Pa. Rule of Criminal Procedure 103 in violation of [Flowers's] due process rights when rendering an erroneous ruling upon [Flowers's] Motion in Limine?
III. Did the trial court abuse its discretion by allowing the jury to convict [Flowers of] criminal conspiracy after Motion [sic] for a judgment of acquittal challenging [that the] arresting officer's testimony was insufficient to establish conspiracy in accordance with 18 Pa.C.S.A. § 903?Brief for Appellant at 4-5.
IV. Did the trial court abuse its discretion by neglecting a fatal variance between the Commonwealth's discovery to [sic] [Flowers] and evidence submitted to the jury under Pa. Rule of Criminal Procedure 704(b), which resulted in a Brady violation and a deprivation of fundamental fairness?
V. Did the trial court abuse its discretion by failing to apply the exclusionary rule to determine if [the] arresting officer entered the residence without warrant or whether [the] person that provided access has common/apparent authority to do so wherein, the independent source doctrine protects against tainted evidence, fruit of the poisonous tree and unlawfully obtained evidence?
VI. Did the Commonwealth invoke a "mandatory presumption[,]" [t]hus prejudicing [Flowers] in the eyes of the jury, which shifted the burden of proof that ultimately affected the strength of "reasonable doubt and burden of proof" during closing argument?
VII. Did the trial court abuse [its] discretion or misapply the law where the trial court permitted the jury to consider hearsay testimony over [Flowers's] objection, which displays partiality, bias and ill[-]will on the sole basis of [Flowers's] objection alone?
VIII. Did the trial court abuse [its] discretion or commit an error of law by failing to provide [Flowers] proper time credit for all time spent in custody as provided for by 42 Pa.C.S.[A.] § 9760[,] et seq.?
See Brady v. Maryland , 373 U.S. 83, 87 (1963) (holding that the prosecution must disclose evidence favorable to the accused that is material either to guilt or to punishment).
Flowers first claims that the trial court improperly denied his Motions to dismiss, filed pursuant to Pennsylvania Rules of Criminal Procedure 571 and 587, without a hearing. Brief for Appellant at 10. Flowers contends that he was not arraigned within 10 days of the filing of the criminal Informations against him. Id. In support, Flowers asserts that the Informations were "initiated" on December 16, 2016, and filed on January 6, 2017. Id. Flowers states that the "earliest date featured on the selected Informations is that of 1-6-2017, for the event 'awaiting filing of informations.'" Id. Flowers relies upon conflicting dates in the record in support of his claim that the case should have been dismissed. Id. at 10-11.
Pursuant to Pennsylvania Rule of Criminal Procedure 571, arraignment must take place "no later than 10 days after the information has been filed." Pa.R.Crim.P. 571. Rule 587 provides that "[u]pon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interests of justice." Pa.R.Crim.P. 587(a)(1).
In its Opinion, the trial court addressed Flowers's claim and concluded that it lacks merit. See Trial Court Opinion, 8/17/18, at 4. Our review of the record confirms the trial court's assessment that the criminal Information was filed on February 13, 2017, and that Flowers's arraignment took place on February 23, 2017, thereby complying with Rule 571. We therefore affirm on the basis of the trial court's Opinion with regard to Flowers's first claim. See id.
In his second claim, Flowers argues that the trial court improperly denied his Motion in Limine. Brief for Appellant at 11. Flowers contends that "the arresting officer in this case gained access to [his] residence via an individual who did not possess common or apparent authority to allow access to law enforcement officials." Id. According to Flowers, the officers were investigating Geisinger at the time they entered the residence. Id. at 12. Flowers contends that the officers should have investigated whether Geisinger had common or apparent authority to grant access to his residence. Id. Because the officers' testimony establishes that Geisinger did not have authority to grant access to Flowers's residence, Flowers argues, the evidence seized from him constituted fruits of the poisonous tree. Id. at 12-13. Flowers further contends that the trial court improperly construed his Motion in Limine as a habeas corpus filing, thereby depriving him of his right to due process and equal protection. Id. at 13.
In its Opinion, the trial court addressed this claim and concluded that it lacks merit. See Trial Court Opinion, 8/17/18, at 5-6. We agree, and affirm on the basis of the trial court's Opinion with regard to this claim. See id.; see also N.T. (Omnibus Hearing), 4/6/17, at 26, 29 (wherein Flowers acknowledges that the trial court was considering his Omnibus Motion at that hearing).
In his third claim, Flowers challenges the sufficiency of the evidence underlying his conviction of criminal conspiracy. Brief for Appellant at 13. Flowers asserts that he stood trial alone, and that the Commonwealth presented no evidence that an agreement existed between himself and another person. Id. According to Flowers, "the [C]ommonwealth put forth absolutely no evidence of the volume or quality to overcome the presumption of innocence." Id.
As this Court has explained,
[a] claim challenging the sufficiency of the evidence presents a question of law. We must determine whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. We must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.Commonwealth v. McFadden , 156 A.3d 299, 303 (Pa. Super. 2017) (citation omitted).
The trial court addressed Flowers's challenge to the sufficiency of the evidence underlying his conspiracy conviction, and concluded that it is without merit. See Trial Court Opinion, 8/17/18, at 6-7. The trial court's findings are supported in the record, and its legal conclusions are sound. See id. We therefore affirm on the basis of the trial court's Opinion with regard to this claim. See id.
In his fourth claim, Flowers asserts that the trial court neglected a "fatal variance" between the discovery produced by the Commonwealth and the evidence presented at trial. Brief for Appellant at 14. Flowers asserts that "newly discovered evidence" demonstrates "perjured testimony, fraud upon the court, entrapment and a Brady violation[.]" Id. In support, Flowers directs our attention to the State Police Property Inventory, which, Flowers asserts, varied from the evidence produced during discovery. Id. Flowers also states that when Commonwealth Exhibit Number 9 was produced during discovery, it did not include the signatures, dates, times or badge numbers of officers, while the document produced at trial included such information. Id. According to Flowers, he did not become of aware of this until after trial. Id. at 15. Flowers also directs our attention to the fact that the document was not submitted by the arresting officer, but by another officer, which "renders this case/conviction based upon second-hand evidence, perjured testimony and a Brady violation." Id. Flowers states that he preserved this claim in a Motion for Extraordinary Relief. Id.
Our Supreme Court has explained that,
in order to establish a Brady violation, a defendant must show that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the defendant, either because it was exculpatory or because it could have been used for impeachment; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant. However, [t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. Rather, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Commonwealth v. Williams , 168 A.3d 97, 109 (Pa. 2017) (internal citations and quotation marks omitted).
In its Opinion, the trial court addressed this claim and concluded that it lacks merit. See Trial Court Opinion, 8/17/18, at 7-8. We affirm on the basis of the trial court's Opinion with regard to this claim. See id.
In his fifth claim, Flowers argues that the trial court erred by admitting evidence obtained following the unlawful entry into his residence without a warrant, or the permission of a person with apparent authority over the residence. Brief for Appellant at 16. Referring to the exclusionary rule, Flowers contends that the trial court failed to determine whether the officer's "entry/search of the residence in question[] was the product of proper investigative procedures and whether permission obtained to conduct said police action was within the proper/lawful constraints[.]" Id.
"The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion." Commonwealth v. Weber , 189 A.3d 1016, 1020 (Pa. Super. 2018) (citation omitted). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Id. at 1020-21 (citation omitted).
As our Supreme Court has explained,
[t]he Fourth Amendment [to the United States Constitution] protects the people from unreasonable searches and seizures. A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment, subject to a few specifically established, well-delineated exceptions. One such exception is a consensual search, which a third party can provide to police, known as the apparent authority exception.Commonwealth v. Strader , 931 A.2d 630, 634 (Pa. 2007) (internal citations and quotation marks omitted). The determination of apparent authority must be based on the totality of the circumstances, and if it is ambiguous whether the third party has apparent authority, "a police officer should make further inquiries to determine the status of the consenting party." Commonwealth v. Blair , 575 A.2d 593, 598 (Pa. Super. 1990).
A third party with apparent authority over the area to be searched may provide police with consent to search. Third[-]party consent is valid when police reasonably believe a third party has authority to consent. Specifically, the apparent authority exception turns on whether the facts available to police at the moment would lead a person of reasonable caution to believe the consenting third party had authority over the premises. If the person asserting authority to consent did not have such authority, that mistake is constitutionally excusable if police reasonably believed the consenter had such authority and police acted on facts leading sensibly to their conclusions of probability.
In its Opinion, the trial court reasoned that the evidence was properly admitted, stating, "Trooper Keppel testified that he was invited into the residence by [] Geisinger to conduct the drug transaction. [Flowers] then authorized him to stay when he arrived and completed the transaction." Trial Court Opinion, 8/17/18, at 8.
At trial, Trooper Keppel testified that on August 25, 2016, while working undercover, he arranged for the purchase of heroin through Geisinger. N.T., 4/3/18, at 31-32. Trooper Keppel explained that he had engaged in approximately eleven prior drug transactions with Geisinger. Id. at 41. Geisinger directed Trooper Keppel to go to the parking lot next to 511 East Market Street in Pottsville. Id. at 41. Trooper Keppel arrived at the parking lot, at which time Geisinger walked from 511 East Market Street to the parking lot. Id. at 32, 41. According to Trooper Keppel, "I met with [] Geisinger, and I was instructed to come into the residence." Id. at 32. Trooper Keppel followed Geisinger into the residence. Id. at 33, 42. Two other women entered the residence and, thereafter, Flowers entered the residence. Id. at 33. Trooper Keppel then testified as follows:
[Trooper Keppel]: ... I did have a conversation with [] Flowers about some people that he knew, he was asking me if I knew. I advised him that I did. And at that time, we did conduct a transaction for the heroin.Id. at 34. Thus, the record supports the trial court's determination, and we discern no error or abuse of discretion in this regard. See Trial Court Opinion, 8/17/18, at 8. Accordingly, we cannot grant Flowers relief on this claim.
Q. [The Commonwealth]: And could you describe with great particularity how that transaction transpired?
A. [] Flowers obtained an item from the white male, in [sic] return handed it to me. I then exchanged him [sic] the $250 of official funds.
I questioned the heroin because it wasn't packaged how we get it; and I was told it was five bundles, or a brick, although it was a bundle in each bag rather than individually packaged.
In his sixth claim, Flowers argues that the prosecutor committed prosecutorial misconduct during his closing argument. Brief for Appellant at 17. Specifically, Flowers asserts that the prosecutor committed misconduct when he stated, "[W]hy would this officer of the law, lie on [] Flowers[,] the defendant?" Id. According to Flowers, this statement constituted "improper opinion/bolstering of the officer's testimony[.]" Id. Flowers asserts that the prosecutor's statement improperly shifted the burden of proof to Flowers, causing him prejudice. Id.
Our review of the record discloses that Flowers failed to lodge any objection to the prosecutor's closing argument. Therefore, he has waived any claim related thereto. See Commonwealth v. Sanchez , 82 A.3d 943, 969-70 (Pa. 2013) (stating that, in order to preserve for appellate review an objection to the opening or closing argument of opposing counsel, the objection must be specific and brought to the attention of the trial court as soon as practical). Further, even if Flowers had preserved this claim, we would conclude that it lacks merit.
As our Supreme Court has explained, "[w]e review the trial court's rulings for abuse of discretion." Id. at 981.
Although a prosecutor may comment on the credibility of the defendant or other witnesses, it is improper for a prosecutor
to express a personal belief as to their credibility. A prosecutor may make fair comment on the admitted evidence and may provide fair rebuttal to defense arguments. Even an otherwise improper comment may be appropriate if it is in fair response to defense counsel's remarks. Any challenge to a prosecutor's comment must be evaluated in the context in which the comment was made. The effect of the prosecutor's remarks must be evaluated in the context and atmosphere of the entire trial.Id. (internal quotation marks and citations omitted).
Moreover, not every unwise, intemperate, or improper remark made by a prosecutor mandates the grant of a new trial. Reversible error occurs only when the unavoidable effect of the challenged comments would prejudice the jurors and form in their minds a fixed bias and hostility toward the defendant such that the jurors could not weigh the evidence and render a true verdict. To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial.
In its Opinion, the trial court addressed Flowers's claim and correctly concluded that it lacks merit. See Trial Court Opinion, 8/17/18, at 8-9. Even if Flowers had properly preserved this claim, we would agree with the trial court's assessment that the prosecutor's comments "were not prejudicial or unfair under the circumstances and considering the contents of [Flowers's] closing argument." See id. at 9.
In his seventh claim, Flowers argues that the trial court improperly admitted hearsay testimony. Brief for Appellant at 18. Specifically, Flowers contends that the trial court improperly admitted Trooper Keppel's testimony regarding a communication between the Trooper and Geisinger, "for purposes of justification for entering [Flowers's] residence." Id. According to Flowers, the trial court "permitted the jury to hear a second-hand account (hearsay) of matters supposedly elicited from [] Geisinger." Id. at 19. Flowers points out that Geisinger did not testify at trial. Id. at 20.
In its Opinion, the trial court addressed Flowers's claim and concluded that it lacks merit. See Trial Court Opinion, 8/1718, at 9-10. We agree with the sound reasoning of the trial court and affirm on this basis with regard to Flowers's seventh claim. See id.
Finally, in his eighth claim, Flowers argues that the trial court improperly failed to give him credit for time that he served in custody, in accordance with 42 Pa.C.S.A. § 9760. Brief for Appellant at 21. According to Flowers, he is entitled to credit for the time he served in custody following April 7, 2018, at which time he was granted bail. Id. Flowers states that although he was granted bail, he was not released from custody. Id.
Section 9760 provides, in relevant part, as follows:
Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.42 Pa.C.S.A. § 9760(1).
In its Opinion, the trial court addressed Flowers's claim, and concluded that he is not entitled to credit for time served as a result of his arrest on different charges. See Trial Court Opinion, 8/17/18, at 3-4. Because the record supports the trial court's determination, we affirm on the basis of the trial court's Opinion with regard to this claim. See id.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/28/2019
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