Opinion
J-S57020-17 No. 388 EDA 2017
11-17-2017
COMMONWEALTH OF PENNSYLVANIA v. DERRICK PHILLIPS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated November 10, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002489-2016 BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J. MEMORANDUM BY SOLANO, J.:
Appellant Derrick Phillips appeals from the judgment of sentence imposed after he was convicted of possession with intent to deliver a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. We affirm.
35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32).
On April 5, 2016, at approximately 6:00 a.m., police executed a search warrant at the home of Tiesha Spriggs in Chester. The warrant was based on Spriggs' sales of methamphetamines to confidential informants. While executing the warrant, police found Appellant in a closet in a bedroom on the first floor of Spriggs' house. Appellant asked what was going on, and after being informed that the police were investigating sales of methamphetamines, Appellant stated that he had only a small amount of cocaine. The closet where Appellant was found contained men's clothing, including a jacket with sixteen bags of cocaine inside weighing a total of 7.89 grams - nine small blue baggies of cocaine inside a sandwich bag and seven larger clear baggies of cocaine. In the first floor bedroom area, police also found Appellant's wallet, containing his driver's license (which listed a different address from Spriggs'), and two cell phones. In Spriggs' upstairs bedroom, police found Apple brand bagging material identical to the bags found in the jacket, several razor blades, and a grinder. In the kitchen, police found a bag of cocaine weighing 11.35 grams.
After the search, Appellant was charged with possession with intent to deliver a controlled substance, possession of a controlled substance, possession of drug paraphernalia, and conspiracy to possess with intent to deliver a controlled substance.
Spriggs was charged with the same offenses but was not tried with Appellant.
Jury selection in Appellant's case took place on September 13, 2016. During voir dire, Juror 10, who was African American, said she had younger brothers and sisters who had been homeless and had been arrested. Juror 10 said she did not know if her siblings had drug-related problems, and added, "But I've heard." She said she would be sympathetic to someone "down on their luck," but not to a defendant merely because he was a defendant. N.T., 9/13/16, at 55-57. Juror 16, who was also African American, said her first cousin was accused of drug-related crimes three times, but said that her cousin's experiences would not affect her ability to be a fair and impartial juror. Id. at 64.
The Commonwealth used its peremptory challenges to strike, among others, Jurors 10 and 16. Appellant claimed that the prosecutor had used his peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky , 476 U.S. 79 (1986). Appellant, who is African American, asserted that the prosecutor had used his peremptory strikes to eliminate the only two African American jurors remaining after one African American venireperson was excused by agreement for a hardship. The prosecutor argued that he struck Juror 10 because she indicated that her brothers and sisters had drug problems and struck Juror 16 because her cousin had been charged with drug crimes. The prosecutor explained, "Anytime someone has family members closely related that have been affected by narcotics and the nature, and the alleged charges in the present case are drug-related, I think it bears a fair inference that the person could potentially be affected or biased one way or another, Your Honor. And for those reasons, those jurors were stricken, Judge." N.T., 9/13/16, at 104. The prosecutor also noted that he struck Caucasian jurors who had relatives who had been charged with crimes. Id. at 107-08. The trial court denied Appellant's Batson challenge. The trial court did not explain its rationale at that time, but in the opinion it issued after Appellant filed this appeal, the trial court explained that it found Appellant established a prima facie case of discrimination, the Commonwealth offered a race neutral explanation, and Appellant failed to carry his burden of proving purposeful discrimination. Trial Ct. Op., 5/15/17, at 11-16.
Jury selection was completed before two other African American venirepersons were reached.
Appellant was tried by the jury on September 14, 2016. At the trial, Detective Steven Bannar and Officer James Nolan, who participated in the execution of the search warrant on April 5, 2016, testified. Detective Bannar and Officer Nolan averred that that they found Appellant in the ground floor bedroom closet and that Appellant said he had a small amount of cocaine. Detective Bannar also testified about the drugs and paraphernalia found in the jacket and in other parts of Spriggs' house. Detective Michael Honicker, an expert in drugs and drug investigations, opined that packaging of the drugs found in the jacket led him to conclude that the cocaine was for distribution, not for personal use. Appellant testified that the bedroom in which he was found was Spriggs' son's room, the jacket in the closet was not his, he did not tell the police he had cocaine, and he did not have any cocaine.
The jury found Appellant guilty of all four crimes with which he was charged. With regard to the charge of possession with intent to deliver, the jury found Appellant possessed the 7.89 grams of cocaine found in the jacket, but not the 11.35 grams found in the kitchen. On November 10, 2016, the trial court imposed the following concurrent sentences: 24 to 60 months' incarceration, followed by five years' probation for possession with intent to deliver a controlled substance; 24 to 60 months' incarceration for conspiracy; and one year of probation for possession of drug paraphernalia. On November 18, 2016, Appellant filed a post-sentence motion in which he argued that the evidence was insufficient to prove that he committed any of the crimes of which he was convicted. On December 13, 2016, the trial court granted Appellant's post-sentence motion with regard to the conspiracy charge and denied it with regard to the other charges.
The charge of possession of a controlled substance merged with the crime of possession with intent to deliver for purposes of sentencing.
On January 9, 2016, Appellant's trial counsel filed a timely notice of appeal and a petition to withdraw. After the trial court granted the petition to withdraw, Appellant's new counsel filed another notice of appeal on January 11, 2016 (254 EDA 2017). This Court dismissed the latter appeal as duplicative of the former.
Appellant raises the following issues, as stated in his brief:
1) Whether the judgment of sentence should be vacated and Appellant, an African American, granted a new trial since the Commonwealth violated Batson v. Kentucky by using peremptory challenges to exclude two potential jurors (numbers ten and sixteen) based upon their race, especially where these strikes eliminated the only two remaining African American panelists available to serve on the jury, and the purported race-neutral reasons for striking them were pretextual and unsupported by the record?Appellant's Brief at 5.
2) Whether the evidence is insufficient to sustain the convictions for possession of a controlled substance with intent to deliver, possession of a controlled substance, and possession of drug paraphernalia since the Commonwealth failed to prove, beyond a reasonable doubt, that Appellant actually or constructively possessed the alleged cocaine and paraphernalia at issue herein?
Sufficiency of the Evidence
We initially address Appellant's second claim, challenging the sufficiency of the evidence, because a successful sufficiency challenge would result in discharge, rather than a retrial. See Commonwealth v. Toritto , 67 A.3d 29, 33 (Pa. Super.) (en banc), appeal denied , 80 A.3d 777 (Pa. 2013).
We apply the following well-established standard of review:
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.) (citation omitted), appeal denied , No. 118 EAL 2017, 2017 WL 3600378 (Pa., Aug. 22, 2017).
Appellant challenges only the element of possession, which is common to all three charges of which he was convicted. Possession may be actual or constructive.
Appellant was found to have violated the following provisions of Section 13(a) of the Controlled Substance, Drug, Device and Cosmetic Act:
The following acts and the causing thereof within the Commonwealth are hereby prohibited: . . .
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act. . . .
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance. . . .
(32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act. . . .
Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as "conscious dominion." We subsequently defined "conscious dominion" as "the power to control the contraband and the intent to exercise that control." To aid application, we have held that constructive possession may be established by the totality of the circumstances.Commonwealth v. Roberts , 133 A.3d 759, 767-68 (Pa. Super.) (citations omitted, some quotation marks omitted, and some formatting altered), appeal denied , 145 A.3d 725 (Pa. 2016).
The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Kevin F. Kelly, we conclude that there was sufficient evidence presented to establish beyond a reasonable doubt that Appellant constructively possessed the cocaine and paraphernalia (baggies) found in the jacket. See Trial Ct. Op. at 20-26 (finding that the evidence, when viewed in a light most favorable to the Commonwealth, was sufficient to prove Appellant's constructive possession, based on Detective Bannar's and Officer Nolan's testimony that Appellant was hiding in a bedroom closet when they executed the search warrant; Appellant was the only person in that bedroom; Appellant told the officers he had a small amount of cocaine; and police found cocaine and baggies in a jacket in the closet where Appellant had been hiding).
Batson Challenge
Appellant claims the trial court erred in rejecting his Batson challenge to the prosecutor's use of peremptory strikes to exclude two African American potential jurors.
The trial court rejected Appellant's Batson claim after concluding that, although Appellant established a prima facie case of discrimination, the Commonwealth offered a race-neutral explanation for its strikes and Appellant failed to carry his burden of proving purposeful discrimination. Trial Ct. Op. at 11-16.
The Supreme Court of Pennsylvania has explained:
In Batson , [476 U.S.] at 89, . . . the United States Supreme Court held that the federal Constitution's Equal Protection Clause prohibits a prosecutor from challenging potential jurors solely on the basis of race. In J.E.B. [ v. Alabama , 511 U.S. 127, 129, 146 (1994)], the High Court extended Batson's holding to encompass challenges on the basis of gender. As we have previously explained, the framework for analyzing a Batson claim involves the following three steps.
First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination. Batson , 476 U.S. at 97 . . . .
The second prong of the Batson test, involving the prosecution's obligation to come forward with a race-neutral explanation of the challenges once a prima facie case is proven, "does not demand an explanation that is persuasive or even plausible." Rather, the issue at that stage "is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reasons offered will be deemed race neutral."
If a race-neutral explanation is tendered, the trial court must then proceed to the third prong of the test, i.e., the ultimate determination of whether the opponent of the strike has carried his burden of proving purposeful discrimination. It is at this stage that the persuasiveness of the facially neutral explanation proffered by the Commonwealth is relevant.
As we have recently reaffirmed, "a trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal and will not be overturned unless clearly erroneous." Such great deference is appropriate and warranted because the trial court, having viewed the demeanor and heard the tone of voice of the attorney exercising the challenge, is uniquely positioned to make
credibility determinations. Although the demeanor of the attorney exercising the peremptory challenge is often the best evidence as to the question of discriminatory intent, the trial court should consider the totality of the circumstances before making its ruling. Other relevant evidence as to the ultimate question of whether the prosecutor exercised purposeful discrimination and acted with discriminatory intent includes the following: the final composition of the jury, the race or gender sensitivity of the case, and any questionable remarks made by the prosecutor during jury selection.Commonwealth v. Roney , 79 A.3d 595, 618-19 (Pa. 2013) (emphasis in original) (most citations omitted).
After a careful review of the record, for the reasons expressed in the opinion of the Honorable Kevin F. Kelly, we conclude that the trial court's decision was not clearly erroneous. See Trial Ct. Op. at 14-16 (finding prosecutor's race-neutral explanations for peremptory strikes were credible; prosecutor did not make any statements or pose any questions "even suggesting, let alone showing an invidious discriminatory motive"; prosecutor's demeanor did not suggest an inappropriate intent; and Appellant's case did not involve a victim of a different race than Appellant).
Appellant argues that two white jurors (numbers 24 and 33) also "knew people who had contact with the criminal justice system," and the prosecutor's failure to strike those jurors constitutes evidence that his reasons for striking the African American jurors were pretextual. Appellant's Brief at 19-21. Appellant did not make this argument in the trial court or in his Appellate Rule 1925(b) statement of matters complained of on appeal, and thus the trial court did not have the opportunity to address it. Even if the argument had been preserved, we would conclude that knowing someone who had contact with the criminal justice system is distinguishable from having a relative with a drug problem. We are therefore unpersuaded by Appellant's argument.
The parties are instructed to attach a copy of the trial court's opinion of May 15, 2017, to all future filings that reference this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/17/2017
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35 P.S. § 780-113(a). It is undisputed that cocaine is a controlled substance under the statute.