Opinion
1115 WDA 2023 J-S24045-24
10-01-2024
COMMONWEALTH OF PENNSYLVANIA v. SHERMAN SPRINGER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered March 7, 2023 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000397-2021
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Appellant Sherman Springer appeals the judgment of sentence entered by the Court of Common Pleas of Washington County after a jury convicted Appellant of Drug Delivery Resulting in Death, Delivery of a Controlled Substance, and Possession of a Controlled Substance. Appellant challenges the weight of the evidence supporting his convictions and asserts that the trial court erred in denying his motion to suppress the photo array identification made by one of the prosecution's witnesses. After careful review, we affirm.
The trial court aptly summarized the factual background of this case as follows:
Around 4:00 p.m. [on April 15, 2020,] Milton Moye and Chelsea Cox arrived at Lawrence Barnes' residence and immediately saw Lawrence Barnes and Appellant, talking outside of the residence. During this discussion between Lawrence Barnes and Appellant,
Chelsea Cox overheard them discussing a plan for Appellant to go and pick up cocaine, after which Appellant left the residence, entered his vehicle, and drove away. After Appellant left, Milton Moye, Chelsea Cox, and Lawrence Barnes entered Lawrence Barnes' residence, sat down, and began to talk. At some point during the discussion, Lawrence Barnes took out his black eyeglass case containing two bags of cocaine, one of which he described as a "good bag" and the other, a "bad bag," and asked Milton Moye and Chelsea Cox if they "wanted some lines" of cocaine. Both Milton Moye and Chelsea Cox agreed, at which point, Lawrence Barnes proceeded to draw three lines of cocaine from the "good bag," which all three individuals subsequently snorted. At no point did Lawrence Barnes remove the "bad bag" of cocaine from the eyeglass case.
After snorting the lines of cocaine from the "good bag" in the eyeglass case, all three individuals felt "fine" and continued to sit around and talk, while Milton Moye and Lawrence Barnes proceeded to drink alcohol.
***
[Thereafter,] Appellant returned and briefly chatted with Lawrence Barnes' brother, Richard Barnes, who was just arriving at the residence. Appellant then followed Richard Barnes into the residence and immediately went to speak with Lawrence Barnes. As Appellant was speaking with Lawrence Barnes, Chelsea Cox observed Appellant hand a clear see-through bag containing a substance she recognized as cocaine to Lawrence Barnes. Upon receiving the new bag of cocaine from Appellant, Lawrence Barnes proceeded to open the bag and draw out multiple lines of cocaine, which he and Chelsea Cox immediately snorted. Shortly after ingesting the cocaine, Lawrence Barnes, who at this point was engaged in a conversation with Richard Barnes, got quiet, began to sweat profusely, and eventually collapsed onto the floor. Almost simultaneously, Chelsea Cox began "feeling really funny in [her] chest," before she ultimately collapsed to the floor as well.
After Lawrence Barnes collapsed to the floor, Richard Barnes retrieved wet towels, placed them on Lawrence Barnes, and called 911 and his wife. Realizing that Chelsea Cox had also collapsed, Richard Barnes again called 911 to report there were now two individuals that had collapsed, while Milton Moye began tending to Chelsea Cox. In the midst of Richard Barnes and Milton Moye attempting to assist Lawrence Barnes and Chelsea Cox, Appellant proceeded to clear of the table by picking up the items, including the drugs, and placing them into a white bag. After he finished
putting the contents of the table into the white bag, Appellant exited the residence, stating that "I can't be here," entered his vehicle, and drove away. After Appellant had finished clearing off the table, Milton Moye observed that the drugs that had previously been on the table were gone.
At this point, Richard Barnes' wife arrived and began to perform CPR on Lawrence Barnes. Shortly thereafter, the paramedics arrived, cleared everyone from the scene, and began tending to Lawrence Barnes and Chelsea Cox. … Officer Willis McConnell of the City of Washington Police Department arrived on the scene after having been dispatched in response to a call from the Washington City Fire Department requesting assistance with an overdose. Eventually, Chelsea Cox was resuscitated after being treated with two doses of Narcan and was then transported to the hospital where she was subsequently treated for a fentanyl overdose. Lawrence Barnes, who was unable to be resuscitated at the residence, was also transported to the hospital where he eventually passed away.
Upon the death of Lawrence Barnes, the Washington County Coroner's Office took custody of the body and ordered an autopsy report, as well as a toxicology report. On April 21, 2020, Jennifer Swatek, a forensic toxicologist at NMS Labs, received two test tubes of cardiac blood and a urine sample from the Washington County Coroner's Office for Lawrence Barnes. Following tests …, said samples tested positive for 4-ANPP, ethanol, cocaine, cocaethylene, benzoylecgonine, fentanyl, as well as presumptive positives for cocaine and metabolites and fentanyl and metabolites. … Dr. Shakir, the forensic pathologist that performed the autopsy on April 16, 2020, stated in the autopsy report that his final opinion regarding Lawrence Barnes' cause of death was that … "Lawrence Barnes, a 56-year old, African American male, died as a result of combined drug toxicity of cocaine, fentanyl, and alcohol."
The toxicology results, along with the autopsy report, relating to Lawrence Barnes, were then evaluated by Dr. Frederick Fochtman, a laboratory director that specializes in analytical testing … for forensic toxicology and drug chemistry, who utilized said results to make a determination as to Lawrence Barnes' cause of death. Relevantly, Dr. Fochtman noted the presence of 0.54 nanograms of 4-ANPP, a fentanyl precursor compound, or minor metabolite of fentanyl and stated that 4-ANPP would not appear in a toxicology report unless the individual had fentanyl in their
system. Dr. Fochtman also noted the presence of 160 nanograms per milliliter of cocaine, which Dr. Fochtman indicated was indicative of recent cocaine use. Lastly, Dr. Fochtman noted the presence of 5.3 nanograms per milliliter of fentanyl, which Dr. Fochtman stated was consistent with a lethal dose of fentanyl. With regard to Lawrence Barnes' autopsy report, Dr. Fochtman stated that the autopsy report indicated that Lawrence Barnes had "edema in the lungs" as well as "a frothy fluid in the bronchi[,]" physical findings that Dr. Fochtman noted were consistent with a fentanyl overdose. Thus, Dr. Fochtman's opinion regarding the cause of Lawrence Barnes' death was that Lawrence Barnes died as a result of the toxicity of cocaine and fentanyl that was in his body, further extrapolating upon his opinion by noting that "fentanyl did indeed have a significant effect in causing [Lawrence Barnes's] death," and were it not for the presence of fentanyl in Lawrence Barnes' body, he likely would not have died.
In addition to Dr. Fochtman's review of Lawrence Barnes' toxicology and autopsy reports, Dr. Jennifer Hammers, a forensic pathologist had the opportunity to review [all of these documents]. Based on the information available to her, Dr. Hammers stated that the Lawrence Barnes' "mechanism of death" was a fentanyl overdose, as evidence by Lawrence Barnes having suffered pulmonary and respiratory depression, indicated by the presence of frothy fluid in his lungs and the airways of his lungs, resulting in his lungs being "almost twice as heavy as they should be." … Ultimately, Dr. Hammers offered her final opinion … in which she stated … "based upon a reasonable degree of medical certainty, it is my professional opinion that Lawrence Barnes died of acute intoxication due to combined effects of cocaine, alcohol, and fentanyl. The autopsy findings combined with the forensic toxicology results indicate that the mechanism of Lawrence Barnes's death was from central nervous depression and respiratory depression related to the use of fentanyl. Given the autopsy findings, Mr. Barnes did not have any natural disease process that would have caused his death. Furthermore, his use of cocaine would not have caused marked pulmonary edema and froth in the bronchial airways. If not for the presence of fentanyl, Mr. Barnes would not have died on April 15, 2020. Furthermore, the presence of fentanyl, without the presence of its metabolite norfentanyl, indicates that Mr. Barnes died in the time period before fentanyl could be metabolized to norfentanyl, which, in my experience, is a short time period between consumption and death.
Following Lawrence Barnes' death, Detective Joseph Fichter of the City of Washington Police Department and Washington County District Attorney's Drug Task Force was assigned to oversee and participate in the investigation into his death. [Detective Fichter] had the opportunity to interview the eyewitnesses that were present at the time Lawrence Barnes died, specifically, Chelsea Cox, Milton Moye, and Jessica Ewing. In addition, Detective Fichter also had the opportunity to speak with Richard Barnes, Rhonda Barnes, and Chris Barnes as part of his investigation. Throughout the interviews, each eyewitness that was able to identify the individual that provided Lawrence Barnes with cocaine on the day he died identified the individual as Appellant. … Detective Fichter also became apprised of the presence of surveillance camera footage from a camera located at 902 Chartiers Street, which pointed toward the back of Lawrence Barnes' residence, that he was able to utilize to corroborate witness statements. … The video, timestamped as April 15, 2020, at 6:20 p.m., depicted an individual exit Lawrence Barnes' residence carrying a white garbage bag. The individual then entered a Jeep Wrangler with the garbage bag and began reversing the vehicle. The eyewitnesses that Detective Fichter spoke with identified the individual carrying the white garbage bag as Appellant. … Detective Fichter also investigated the Jeep Wrangler in the video ultimately identifying a registration plate for the Jeep as a result of a tip. … Detective Fichter learned that the plate, along with the Jeep Wrangler, were registered to and owned by Appellant.Trial Court Opinion (T.C.O.), 10/31/23, at 4-13 (footnotes and internal citations omitted).
On December 2, 2022, a jury convicted Appellant at all counts. On March 7, 2023, the trial court sentenced Appellant to 108-216 months' imprisonment on the charge of Drug Delivery Resulting in Death and imposed no further penalty on the remaining counts.
On March 15, 2023, Appellant filed pro se motions to 1) proceed in forma pauperis, 2) seek the appointment of new counsel, and 3) to request an extension of the time period to file post-sentence motions. Appellant claimed that he could no longer retain trial counsel's representation due to financial difficulty. The same day, the trial court filed orders allowing Appellant to proceed in forma pauperis, appointing the Washington County Public Defender's Office to represent Appellant, and granting Appellant a 20-day extension to file a post-sentence motion.
Unaware of the March 15, 2023 order, trial counsel simultaneously filed a notice of appeal in this Court (which was docketed at 322 WDA 2023) along with a petition to withdraw as counsel and a request for appointment of new counsel. Trial counsel explained that the scope of her representation had ended after filing the appeal requested by Appellant. Thereafter, trial counsel subsequently sought leave to withdraw the 322 WDA 2023 appeal, which this Court granted on March 31, 2023.
On April 4, 2023, the Public Defender's Office requested a second extension of the deadline to file a post-sentence motion as the previous appeal had removed jurisdiction from the trial court to allow the filing and review of a post-sentence motion. On April 4, 2023, the trial court issued an order extending the time for filing post-sentence motions by 45 days. On May 19, 2023, appellate counsel filed a post-sentence motion. On August 18, 2023, the trial court denied the post-sentence motion. On September 15, 2023, appellate counsel filed the instant notice of appeal.
Generally, a notice of appeal must be filed within thirty days of the entry of the order being appealed. See Pa.R.A.P. 903(a); Commonwealth v. Moir, 766 A.2d 1253 (Pa.Super. 2000). If the defendant files a timely post-sentence motion, the notice of appeal shall be filed within thirty days of the entry of the order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). An extension request filed within ten days of the judgment of sentence will toll the appeal period. See Commonwealth v. Horst, 481 A.2d 677 (Pa.Super. 1984) (finding that where a request for an extension to file a post-sentence motion was filed within ten days of the judgment of sentence, the appeal period was tolled).
In this case, Appellant filed a pro se motion for an extension of time to file a post-sentence motion within ten days of his judgment of sentence. However, we acknowledge that Appellant was still represented by counsel when he requested this extension. Typically, "[a]s hybrid representation is not permitted in the Commonwealth, our courts will not accept a pro se motion while an appellant is represented by counsel; indeed, pro se motions have no legal effect and, therefore, are legal nullities." Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (citing Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)).
Nevertheless,
this Court has recognized that a counseled defendant may act on his own to protect important rights where counsel remains technically attached to the case but is no longer serving the client's interest. See Williams, supra. Thus, where counsel has effectively discontinued working on a defendant's behalf, this Court has concluded that a pro se filing does not offend considerations of hybrid representation. See Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015).Commonwealth v. Williams, 241 A.3d 353, 355 (Pa.Super. 2020).
In this case, Appellant was effectively unrepresented after the judgment of sentence was entered as trial counsel confirmed that the scope of her representation had ended when she filed a notice of appeal that Appellant had requested. However, Appellant filed a timely request for an extension to file a post-sentence motion within the 10-day period after sentencing and petitioned the Court for the appointment of counsel as he could no longer afford to retain private counsel. Thus, the trial court properly accepted Appellant's pro se motion as Appellant was proceeding in an essentially unrepresented capacity and the principles of hybrid representation were not implicated.
In addition, as the Public Defender's Officer filed a second extension request within the extended filing period, we conclude that Appellant timely filed his post-sentence motion on May 19, 2023. After the trial court denied the post-sentence motion on August 18, 2023, Appellant filed a timely notice of appeal on September 15, 2024. We may proceed to review the merits of Appellant's claims.
Appellant raises the following issues for review on appeal:
1) Whether the trial court erred in denying [Appellant's] post-sentence motion for a new trial based on the weight of the evidence[?]
2) Whether the trial court erred in denying [Appellant's] motion to suppress evidence based on an improper photo array identification.Appellant's Brief, at 6.
Appellant first challenges the weight of the evidence supporting his convictions. We are guided by the following standard of review:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Sebolka, 205 A.3d 329, 340-341 (Pa.Super. 2019) (citations and internal quotation marks omitted).Commonwealth v. Dewald, 317 A.3d 1020, 1037 (Pa.Super. 2024).
Appellant's challenge to the weight of the evidence is based on his assertion that Chelsea Cox was not a credible witness in testifying that Appellant supplied Lawerence Barnes with the cocaine that was suspected to have been laced with fentanyl. Appellant points out that Ms. Cox had been snorting cocaine at the time of the incidents.
The trial court thoroughly evaluated Appellant's challenge to the weight of the evidence and concluded that this claim lacked merit. The trial court emphasized that Ms. Cox's testimony was corroborated by multiple eyewitnesses who observed Barnes and Ms. Cox display overdose symptoms nearly immediately after they snorted lines of the cocaine that Appellant had just delivered to the residence. While other individuals were providing aid to Lawrence Barnes and Ms. Cox, they observed Appellant shoving all the drugs and paraphernalia into a white garbage bag and heard him state, "I can't be here." The trial court also highlighted that surveillance video footage, recorded on the date and time that Lawrence Barnes overdosed, documented Appellant leaving Lawrence Barnes' residence, carrying a white garbage bag, and fleeing the scene in his Jeep Wrangler. Further, the trial court noted that Appellant's cell phone data showed that he made multiple calls to Lawrence Barnes on the date he overdosed and died.
Further, the prosecution presented multiple expert witnesses who concluded Lawrence Barnes had fentanyl in his system at the time of his death and that if not the presence of fentanyl, he would not have died. We highlight the testimony of Dr. Hammers who indicated that the fact that autopsy results showed that Lawrence Barnes did not metabolize the fentanyl in his system indicated that he died within a short period after consuming the fentanyl. Such testimony substantiates Ms. Cox's assertion that Appellant had supplied Lawrence Barnes with cocaine laced with fentanyl as both Lawrence Barnes and Ms. Cox collapsed shortly after taking lines from the bag of cocaine that Appellant brought to the home.
Upon our independent review of the certified record and the trial court's opinion, we conclude that the trial court properly exercised its discretion in rejecting Appellant's challenge to the weight of the evidence.
Second, Appellant claims the trial court erred in denying his motion to suppress the photo array identification made by Ms. Cox. Our standard of review is well-settled:
[our] 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.Commonwealth v. Fletcher, 307 A.3d 742, 745-46 (Pa.Super. 2023) (quoting Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015)).
In evaluating a similar suppression challenge to a photo array identification process, this Court has held that:
"[w]hether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances." Commonwealth v. Carson, 559 Pa. 460, 480, 741 A.2d 686, 697 (1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000),
abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003). "Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but 'suggestiveness alone does not warrant exclusion.'" Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa. Super. 2009). Identification evidence will not be suppressed "unless the facts demonstrate that the identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Commonwealth v. Burton, 770 A.2d 771, 782 (Pa. Super. 2001), appeal denied, 582 Pa. 669, 868 A.2d 1197 (2005), overruled on other grounds by Commonwealth v. Mouzon, 571 Pa. 419, 429, 812 A.2d 617, 623 (2002), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Photographs used in line-ups are not unduly suggestive if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics. Commonwealth v. Fisher, 564 Pa. 505, 520, 769 A.2d 1116, 1126-1127 (2001).Commonwealth v. Mbewe, 203 A.3d 983, 986-87 (Pa.Super. 2019) (quoting Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super. 2011)).
In his suppression motion, Appellant did not argue that the photos in the array were unduly suggestive, but claimed that Ms. Cox's identification was influenced between events that occurred between the time of the crime and her observation of Appellant in the photo array. Appellant took issue with the fact that although the police interviewed Ms. Cox shortly after the victim's death, the police did not ask Ms. Cox to identify Appellant in a photo array until the day of Appellant's preliminary hearing. Appellant alleged that Ms. Cox identified him in a photo array only after seeing Appellant appear virtually "on a video screen in the Washington County Jail wearing the standard inmate outfit." Suppression Motion, 6/1/22, at 7-8.
After holding a suppression hearing at which Ms. Cox and Detective Fichter testified, the trial court determined that the photo array process was not unduly suggestive. The trial court found Ms. Cox to be credible in her assertion that she had not seen Appellant between the date of the drug delivery and her identification of Appellant in the photo array. The trial court also believed Detective Fichter's assertion that Ms. Cox had been shown the photo array before the preliminary hearing and had not yet been given the opportunity to view Appellant's image on the videoconference. Detective Fichter also indicated that he did not make any comments or suggestions to Ms. Cox about any of the individuals in the photo array, which contained images of individuals with similar facial features. As such, the trial court determined that Appellant's suppression claim was meritless.
On appeal, Appellant does not challenge any of the trial court's findings on this issue and appears to concede that Ms. Cox did not see Appellant at the preliminary hearing before she identified him in the photo array. Instead, Appellant argues that as Ms. Cox's identification of Appellant at the preliminary hearing "occurred after news articles with [Appellant's] photo had been published in connection with this matter," Ms. Cox may have investigated Appellant's identity and have determined what he looked like before the photo array.
However, Appellant did not present this allegation to the trial court, but instead raises it for the first time on appeal. Pennsylvania Rule of Appellate Procedure 302(a) provides that "[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a); See also Commonwealth v. Spone, 305 A.3d 602, 608 (Pa.Super. 2023). As Appellant did not raise these particular grounds before the trial court to justify suppression of the photo array, Appellant has failed to preserve this argument for appeal.
For the foregoing reasons, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.