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Commonwealth v. Green

SUPERIOR COURT OF PENNSYLVANIA
Aug 13, 2018
No. J-A08026-18 (Pa. Super. Ct. Aug. 13, 2018)

Opinion

J-A08026-18 No. 1671 EDA 2017

08-13-2018

COMMONWEALTH OF PENNSYLVANIA v. MARCUS A. GREEN Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence April 25, 2017
In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002453-2015 BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:

Retired Senior Judge assigned to the Superior Court.

Marcus A. Green appeals from the judgment of sentence, entered in the Court of Common Pleas of Delaware County, after a jury convicted him of three counts of possession of a controlled substance (oxycodone), three counts of possession of drug paraphernalia, two counts of criminal conspiracy to possess a controlled substance, and possession of a firearm by a prohibited person. Upon careful review, we affirm, in part on the basis of the opinion authored by the Honorable Mary Alice Brennan.

Green's convictions stem from a search conducted at his home pursuant to a warrant obtained after members of the Upper Darby Township Narcotics Unit observed Green make three hand-to-hand controlled sales of crack cocaine to a confidential informant (CI). When agents entered Green's home to execute a search warrant, the Narcotics Unit, accompanied by the Delaware County Drug Task Force, encountered Green and his girlfriend, Monique Edwards, in the living room. On Green's person were two iPhones, $3,343.00 in cash, and one pill later identified as oxycodone. Throughout the house the agents found numerous empty ziploc bags, two scales with powdery white residue on them, a razor with powdery white residue on it, $6,000.00 in cash, oxycodone pills, suboxone in film and pill form, and a loaded .380 automated hand gun.

After a trial held on February 1, 2017, a jury found Green guilty of the above charges. On April 25, 2017, the trial court sentenced him to an aggregate sentence of four to ten years' imprisonment. This timely appeal followed, in which Green raises the following issues:

1. Whether the evidence at trial was insufficient to support the conviction for [p]ossession of a [f]irearm [p]rohibited[?]
2. Whether [the Commonwealth] failed to carry its burden of proof to establish the validity and veracity of the information contained in the search warrant; and whether the Honorable Court below erred by not affording [Green] the traditional safeguard of cross-examination, to test the truthfulness of the recitals[?]
3. Whether the Honorable Court below erred by permitting expert testimony regarding drug distribution with respect to the use of drug paraphernalia[?]
4. Whether the Honorable Court below erred by denying [Green's] request for the jury instruction [on the] defense [of] authorization for possession of a controlled substance, and denying [Green] the opportunity to adequately argue a defense [of] authorization[?]
5. Whether [Green's] right to remain silent was violated by Sergeant [Timothy] Bernhardt's testimony during cross-examination[?]
6. Whether the Honorable Court below erred by not quashing the preliminary hearing transcript as a result of [the Commonwealth] not establishing a prima facie case[?]
7. Whether the Honorable Court below erred by denying [Green's] motion in limine to exclude[] the admission of Exhibit 36A, a staged photograph of seized evidence[?]
Appellant's Brief, at 4-5.

We have renumbered certain of Green's claims for ease of disposition.

Green's first assignment of error concerns the sufficiency of the evidence to sustain his possession of a firearm conviction. Our standard of review of such claims is well-settled:

In challenges to the sufficiency of the evidence, our standard of review is de novo, however, our scope of review is limited to considering the evidence of record, and all reasonable inferences arising therefrom, viewed in the light most favorable to the Commonwealth as verdict winner. Evidence is sufficient if it can support every element of the crime charged beyond a reasonable doubt. The evidence does not need to disprove every possibility of innocence, and doubts as to guilt, the credibility of witnesses, and the weight of the evidence are for the fact-finder to decide. We will not disturb the verdict unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.
Commonwealth v. Forrey , 108 A.3d 895, 897 (Pa. Super. 2015) (internal citations and quotation marks omitted).

When contraband is not found on a defendant's person, the Commonwealth may meet its burden by showing possession existed jointly or constructively. Commonwealth v. Roberts , 133 A.3d 759, 767-68 (Pa. Super. 2016). Constructive possession is essentially an inference arising from the facts and circumstances that possession of the contraband was more likely than not. Id. at 768. "The Commonwealth may sustain its burden by means of wholly circumstantial evidence." Id. Upon review of the record, the briefs and the relevant law, we conclude that Judge Brennan thoroughly and correctly addresses this claim in her opinion, and we affirm on that basis.

Green next argues the trial court abused its discretion by denying him the opportunity to cross-examine the affiant of the search warrant, in order to test her truthfulness. For the following reasons, Green is entitled to no relief.

Prior to trial, Green filed an omnibus motion seeking, inter alia, production of the CI and suppression of the evidence obtained pursuant to the search warrant, which Green argued was not supported by probable cause. At a hearing held on November 12, 2015, Green informed the court that he was not actually seeking immediate production of the CI. Rather, he sought first to cross-examine the affiant in order to test the truth of the recitals in the affidavit. Only if the suppression hearing resulted in a finding by the court that the affiant had been untruthful would Green seek production of the CI. For its part, the Commonwealth rested on the four corners of the affidavit. At the close of the hearing, the parties requested to brief the matter, which request was granted. On January 5, 2016, the court denied Green's motion without holding a suppression hearing.

Green's counsel stated that he had filed the motion simply to place the court and the Commonwealth on notice of the possibility that he may, at a later date, request production of the CI.

A defendant has the right to test the veracity of the facts recited in the affidavit of probable cause. Commonwealth v. James , 69 A.3d 180, 187 (Pa. 2013). "To rule otherwise, would permit police in every case to exaggerate or expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination." Commonwealth v. Hall , 302 A.2d 342, 344 (Pa. 1973). Where the issuance of a warrant is based on information provided by a CI, "[i]f the informant was reliable, the search warrant was issued with probable cause[;] if the informant was proven to be without reliability, the warrant was improperly issued." Id. at 345. While it is the Commonwealth's burden to prove the veracity of the statements contained in the affidavit when the validity of the warrant is disputed, James , supra at 189, "the defendant must specify in his suppression motion his challenge to the affidavit so the Commonwealth is alerted to its burden of proof; bald allegations of failure to show probable cause are insufficient and require nothing more than introduction of the affidavit and warrant." Id., quoting Commonwealth v. Ryan , 407 A.2d 1345, 1348 (Pa. Super. 1979).

Here, Green's motion to suppress alleged only a lack of probable cause. However, in his motion to produce the confidential informant, which he incorporated by reference into his suppression motion, Green challenged the reliability of the CI. This specific challenge to the validity of information contained in the affidavit was sufficient to alert the Commonwealth to its burden of proof, and a suppression hearing should have been held, at which the Commonwealth would have borne the burden of establishing the validity of the statements contained in the affidavit using live witnesses subject to cross-examination. See James , 69 A.3d at 189. However, in this case, the trial court's failure to hold such a hearing was harmless error. Even if all information obtained as a result of tips provided by the CI were excised from the affidavit, probable cause would still exist by virtue of the three controlled buys orchestrated and thoroughly documented in the affidavit by Officer McAleer. Accordingly, the reliability of the CI is ultimately irrelevant. Because the only other allegation in Green's suppression motion was a bald claim of a lack of probable cause, the Commonwealth was not required to introduce anything beyond the affidavit and warrant. James , supra . Green is entitled to no relief.

Green next challenges the admission of Commonwealth expert testimony to prove Green's intent to distribute drugs. "The admissibility of expert testimony is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion." Commonwealth v. Petrovich , 648 A.2d 771, 772 (Pa. 1994). Expert testimony is admissible to illustrate the modus operandi of the drug trade, as it is admissible to explain any relevant but obscure area of knowledge. Commonwealth v. Davenport , 452 A.2d 1058, 1062, 1063 n.1 (Pa. Super. 1982). The term drug paraphernalia is defined as "[c]apsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances." 35 P.S. § 780-102(b)(9). However, it is also true that many items, such as capsules and envelopes, have uses entirely unrelated to illegal drug activity. Thus, section 780-102 enumerates factors to consider in determining whether an item constitutes drug paraphernalia. "The thrust of these considerations[] is that the Commonwealth must establish that the items possessed[] were used or intended to be used with a controlled substance." Commonwealth v. Torres , 617 A.2d 812, 815 (Pa. Super. 1992). The Commonwealth may prove this through circumstantial evidence. Id.

Here, the Commonwealth presented evidence consisting of various small ziploc bags, a scale, and a razor to prove Green's intent to distribute drugs. Thus, the testimony of two police officers was admissible to explain how the possession of these items was consistent with an intent to deliver rather than mere possession for personal use. Commonwealth v. Ariondo , 580 A.2d 341, 350-51 (Pa. Super. 1990). The trial court, therefore, did not err in admitting the expert testimony which provided this context for the jury.

Green next alleges the trial court improperly denied his request for jury instructions on his defense that he was authorized to possess the single oxycodone pill found on his person. "A defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor." Commonwealth v. Weiskerger , 554 A.2d 10, 14 (Pa. 1989); Pa.R.Crim.P. 647. Green's only evidence in support of his authorization claim was the testimony of his best friend, Maurice Edge, that Green at one time had a prescription for "some type of pain killer." N.T. Trial, 2/1/17, at 195. Edge did not know specifically what drug it was or when Green allegedly possessed the prescription. Because this evidence was insufficient for a reasonable jury to find in Green's favor on this issue, the trial court properly denied the requested jury instructions on authorization.

Next, Green contends that trial testimony of Sergeant Timothy Bernhardt violated his right to remain silent. Specifically, on cross-examination, defense counsel asked Sergeant Bernhardt, "Did you interview my client in any way and ask him any questions about any of the items present inside the house?" Bernhardt answered, "So, I attempted to and that's when I was told to go pound sand." Id. at 28. Green argues he was not given any notice through pretrial discovery that he had invoked his right to remain silent, and therefore Green was "not able to request, through pretrial motions, that the evidence of his pre-arrest silence be subjected to an assessment by the [trial court] to determine whether the probative value of his pre-arrest silence outweighed the prejudicial effect." Appellant's Brief, at 42.

Green's argument is misplaced. It is true that the Commonwealth "cannot use a non-testifying defendant's pre-arrest silence to support its contention that the defendant is guilty of the crime charged as such use infringes on a defendant's right to be free from self-incrimination." Commonwealth v. Adams , 39 A.3d 310, 318 (Pa. Super. 2012) (internal citations omitted). Thus, a non-testifying defendant's pre-arrest silence is deemed "constitutionally protected," and cannot be used as substantive evidence of guilt. Id. However, Green's premise is inapplicable to the case at bar, where his pre-arrest statements were not being used by the Commonwealth as substantive evidence of guilt. Indeed, it was defense counsel who elicited the testimony on cross-examination, and counsel made no objection, nor requested a sidebar, nor any type of curative instruction. Furthermore, the Commonwealth did not exploit the reference. Accordingly, Sergeant Bernhardt's testimony did not infringe upon Green's right to remain silent. Moreover, because Green failed to object to the testimony, the claim is waived. See Commonwealth v. Houck , 102 A.3d 443 (Pa. Super. 2014) (failure to lodge timely and specific objection before trial court waives issue on appeal).

Green next claims the trial court erred by not granting his motion to quash at the preliminary hearing, after the Commonwealth allegedly failed to establish a prima facie case. Green is entitled to no relief.

It is well-settled that once a defendant has gone to trial and guilt is proven beyond a reasonable doubt, any claims regarding the sufficiency of the evidence at the preliminary hearing become moot. Commonwealth v. Rivers , 644 A.2d 710, 715 (Pa. 1994); see also Commonwealth v. Lee , 662 A.2d 645, 650 (Pa. 1995) (adjudication of guilt renders moot any allegation that Commonwealth failed to establish prima facie case at preliminary hearing). Accordingly, Green's claim is moot.

Green's final claim is that the trial court erred by permitting the admission of Exhibit 36A, a staged police department photograph of the evidence seized from the premises. Green argues this photograph was irrelevant and unfairly prejudicial. The admissibility of evidence is a matter for the trial court's discretion, and a ruling will only be reversed for an abuse of discretion. Commonwealth v. Antidormi , 84 A.3d 736, 749 (Pa. Super. 2014). The trial court addressed this issue as follows:

[Green] does not state how the introduction of this evidence prejudiced him[,] hampering this [c]ourt's ability to address his specific concern. However, each item depicted in the photograph was admitted into evidence and published to the jury at trial. It is difficult to construe how a photograph of the same items admitted into evidence at trial prejudiced [Green] any more [than] the admission of the original items. [Green's] claim lacks merit.
Trial Court Opinion, 7/17/17, at 17.

We can discern no abuse of discretion on the part of the trial court in concluding that Exhibit 36A was admissible. Green is entitled to no relief.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/13/18

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Summaries of

Commonwealth v. Green

SUPERIOR COURT OF PENNSYLVANIA
Aug 13, 2018
No. J-A08026-18 (Pa. Super. Ct. Aug. 13, 2018)
Case details for

Commonwealth v. Green

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. MARCUS A. GREEN Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Aug 13, 2018

Citations

No. J-A08026-18 (Pa. Super. Ct. Aug. 13, 2018)