Opinion
J-A28009-17 No. 32 EDA 2015
12-22-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSH E. STEWART Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010738-2013 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Josh E. Stewart, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for possession with intent to deliver a controlled substance ("PWID") and criminal conspiracy. We affirm.
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903, respectively.
In its opinion filed July 21, 2016, the trial court accurately set forth the relevant facts of this case as follows:
FACTUAL HISTORY
At trial, the Commonwealth of Pennsylvania established that between the dates of July 16th through July 19, 2013, City of Philadelphia Police Officers McClain, Coaxum, Floyd, and Cuffie conducted an investigation involving the sale of narcotics in Southwest Philadelphia. Specifically, the object
of their attention was a house located at 5832 Webster Street in the city and county of Philadelphia.
Officer McClain testified at trial that on the first day of the investigation, July 16, 2013, he and his partner, Officer Coaxum, met a designated confidential informant (hereinafter referred to as "C.I."). Officer McClain personally and methodically checked the C.I. for narcotics and money in preparation before sending the C.I. on a supervised mission to purchase illegal narcotics from a suspected drug dealer. This method of preparation involved searching the informant's pockets and garments, to insure that the supervised purchase would not [be] impaired by any other funding sources or narcotics.
Once Officer McClain was satisfied that the C.I. possessed zero narcotics or money, the C.I. was provided a sum of "pre-recorded buy money." Officer McClain then directed the C.I. to attempt to purchase illegal narcotics at or near the targeted location of 5832 Webster Street in Southwest Philadelphia. Officer McClain observed the C.I. walk from the Officer's unmarked surveillance vehicle and down the residential 5800 block of Webster Street toward the suspected residence of 5832 Webster Street. Officer McClain waited at a nearby surveillance location until the C.I. returned after a few short moments.
Upon the C.I.'s return, Officer McClain searched the informant again to insure no additional money or narcotics were possessed. The C.I. possessed no money and provided Officer McClain with two clear packets of crack cocaine narcotics that were purchased with the pre-recorded buy money. Additionally, the CI provided the Officer with a phone number...to arrange future purchasing of narcotics.
Later, on the same day as the first purchase, telephone arrangements were made to purchase cocaine utilizing the same telephone number earlier provided to the C.I. The same C.I. then purchased two clear packets of cocaine in a similar manner as described in the first sale. Officers observed the alleged seller of the second set of packets of cocaine to be an unknown male who left the area.
On July 18, 2013[,] the Officers returned to the area of 5832
Webster Street with the same C.I. they used on July 16, 2013, and again directed the C.I. to purchase cocaine, implementing the same telephone communication procedures and surveillance methods used on July 16, 2013. On this date, the C.I. purchased two clear packets of cocaine in exchange for $20.00 pre-recorded buy money from another unknown male from 5832 Webster Street.
Following the drug transactions on July 16, 2013 and July 18, 2013, officers obtained a legally issued Search and Seizure Warrant for the address 5832 Webster Street. Prior to execution of the warrant, the same C.I. that had been utilized on the earlier dates, was sent directly to 5832 Webster Street to purchase narcotics with $40.00 pre-recorded buy money after being thoroughly searched and directed in the same manner as before.
Officers credibly testified on July 19, 2013, they observed [Appellant] walk down the sidewalk of the 5800 block of Webster Street from an unknown location and readily greet the C.I. After the C.I. and [Appellant] briefly spoke to each other, [Appellant] went inside 5832 Webster Street, while initially leaving the C.I. on the porch of this row home residence. [Appellant] then allowed the C.I. entry into 5832 Webster Street. When the C.I. directly returned to the surveillance position, the C.I. was again searched for money or drugs. The C.I. provided the officers with four clear packets of crack cocaine [which] appeared to be consistent in weight [with] the packets previously purchased.
Upon search of 5832 Webster Street, Officers recovered mail addressed to [Appellant], [Appellant's] Pennsylvania Non-Driver's Photographic Identification Card, as well as the pre-recorded buy money used in the purchase just moments before the execution of the Warrant. Officers also recovered house keys, $390.00, and numerous new and unused green and pink zip-lock packets similar to the packets encasing the previously purchased cocaine, and a cellular phone with a number different than the number used to arrange transactions.
Although there were some conflicts in the officers' trial testimony as to the exact location of some of the items recovered within 5832 Webster Street, these memory
differences were relatively minor and the jury reasonably resolved them in the favor of the Commonwealth's version of events.(Trial Court Opinion, filed July 21, 2016, at 4-6).
Procedurally, the jury convicted Appellant on April 11, 2014, of one count each of PWID and conspiracy to commit PWID. On June 12, 2014, the court sentenced Appellant to an aggregate term of four (4) to ten (10) years' imprisonment, plus six (6) years' probation. Appellant timely filed a post-sentence motion on June 20, 2014, which the court denied on June 24, 2014. On July 1, 2014, Appellant timely filed a notice of appeal. On October 6, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant subsequently requested an extension of time to file his concise statement, until after receipt of the notes of testimony. The court granted Appellant's request. On January 11, 2016, the trial court issued a Rule 1925(a) opinion, explaining Appellant still had not filed a Rule 1925(b) statement even though the notes of testimony had been transcribed, and suggested waiving Appellant's appellate issues on this ground.
Pursuant to Pa.R.A.P. 1925(c)(3), outright waiver of Appellant's issues would have been inappropriate. See Pa.R.A.P. 1925(c)(3) (stating if appellant in criminal case was ordered to file concise statement and failed to do so, such that appellate court is convinced that counsel has been per se ineffective, appellate court shall remand for filing of concise statement nunc pro tunc and for preparation and filing of opinion by trial court).
On January 14, 2016, Appellant filed an application for relief in this Court seeking a remand to file a Rule 1925(b) statement, claiming a scrivener's error had prevented Appellant's receipt of the notes of testimony. In anticipation of this Court's grant of his request, Appellant filed a Rule 1925(b) statement in the trial court on that date. This Court granted Appellant's request by per curiam order, on February 2, 2016. Appellant subsequently obtained new counsel, who filed another application for remand in this Court, seeking to file a supplemental Rule 1925(b) statement raising new appellate issues. This Court granted that request on November 10, 2016. On November 29, 2016, Appellant filed a supplemental Rule 1925(b) statement. The trial court then filed a supplemental opinion on April 3, 2017.
Appellant raises four issues for our review:
For purposes of disposition, we have re-ordered Appellant's issues.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING THE JURY'S REQUEST DURING DELIBERATIONS FOR A READ BACK OF A BRIEF PORTION OF THE TESTIMONY OF TWO POLICE WITNESSES, AND BASED THAT ERRONEOUS RULING ON A MISINTERPRETATION OF THE JURY NOTE?
WHETHER [APPELLANT] WAS ENTITLED TO AN ADVERSE INFERENCE INSTRUCTION WHERE THE POLICE DID NOT PRESERVE THE MOST INCRIMINATING EVIDENCE THEY ALLEGED, RECOVERED DRUG BUY MONEY?
WERE NOT THE TRIAL COURT'S INSTRUCTIONS THAT [APPELLANT] CAN BE LIABLE FOR CRIMES COMMITTED BY ANOTHER BY VIRTUE OF BEING A CO-CONSPIRATOR INCONSISTENT WITH THE SUPREME COURT'S DECISION IN COMMONWEALTH V. KNOX , [629 PA. 467,] 105 A.3D 1194 [(2014)], AND THE GOVERNING STATUTE, 18 PA.C.S.
§ 306, WHICH PROVIDES FOR ACCOMPLICE LIABILITY ONLY?(Appellant's Brief at 9).
DO NOT STATE LAW AND DUE PROCESS OF LAW REQUIRE THE GRANT OF A NEW TRIAL ON THE BASIS OF INDIVIDUAL AND CUMULATIVE ERROR?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Anne Marie B. Coyle, we conclude Appellant's issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Supplemental Trial Court Opinion, filed April 3, 2017, at 3-11) (finding: (1) during deliberations, jury submitted request to have testimony of Officers Cuffie and Coaxum read back; jury said it specifically wanted to hear officers' testimony related to recovery of Appellant's photo identification card; parties agreed it would be improper for court to read entirety of each officer's testimony; defense counsel requested that court stenographer read back to jury parceled portions gleaned from direct and cross examination of both witnesses concerning their recovery of items including photographic identification; court declined defense counsel's request because reading back discrete portions of direct and cross examination of both witnesses would be out of context, create further confusion, and invite undue inquiry; court employed its discretion by declining to read back officers' testimony and instead, directing jurors to utilize their collective recollection; to permit selective reading of testimony would place undue emphasis on those portions of testimony; additionally, given brevity of trial, where officers testified one day before deliberations, read back of testimony was not warranted; (2) regarding pre-recorded buy money police recovered from Appellant, it would have been unreasonable for court to issue adverse inference instruction simply because police did not physically retain original U.S. currency used in investigation from date of Appellant's arrest to date of trial; there is obvious, practical need for City of Philadelphia police department to recirculate its limited supply of U.S. currency to facilitate future criminal investigations; moreover, officers photocopied unique serial numbers of each bill before narcotics purchase and after Appellant's arrest; Commonwealth provided defense photocopies of these bills, with corresponding serial numbers, well in advance of trial; thus, Commonwealth sufficiently preserved pre-recorded buy money for evidentiary purposes; (3) Appellant did not object to jury instructions on accomplice or co-conspirator liability, so claim is waived; moreover, Commonwealth presented evidence that Appellant, at least once, actively or constructively sold illegal narcotics to C.I. from residence at issue; additional physical evidence obtained from search of residence showed Appellant's joint dominion and control over property where he had sold illegal narcotics and that Appellant had been acting in concert with others who had actively sold same type of illegal narcotics in same manner as Appellant from same location, close in time to Appellant's sale; court gave definitions of each element of PWID; jury could have decided Appellant acted as principal even without any understanding of Appellant's culpability as co-conspirator or accomplice; unlike defendant in Knox , Appellant was also charged with conspiracy to commit PWID; because trial evidence supported possible determination of Appellant's culpability for PWID as co-conspirator or accomplice, court gave jury instructions for co-conspirator and accomplice liability; court distinguished between theories of liability and provided instructions almost verbatim from Suggested Standard Criminal Jury Instructions; (4) court considered whether Appellant was entitled to new trial for individual or collective errors and decided no harmful, prejudicial, or reversible error had occurred). Therefore, we affirm based on the trial court's Supplemental Rule 1925(a) opinion.
See Commonwealth v. Small , 559 Pa. 423, 741 A.2d 666 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 80 (2000) (explaining it is within trial court's discretion to grant or deny jury's request for read back of trial testimony; holding trial court properly exercised its discretion by denying jury's request for read back, and instead instructing jury to use its "collective recollection," where read back would have posed risk that jury would unduly highlight that testimony).
Appellant contends that the photocopy of the money used in the controlled buy on July 19, 2013, is not an accurate reproduction of the pre-recorded buy money actually used on that date. Specifically, Appellant claims a cover sheet attached to the photocopy states in the subject line: "PRE-RECORDED BUY MONEY FOR FRIDAY JULY 18, 2013." (Appellant's Reply Brief at 3). At trial, Officer McClain testified that the cover sheet contains a "general" section, which is automatically generated by the computer program, and a "subject" section, which is completed by the user. The "general" section accurately contains the date "7/19/13." Officer McClain suggested that the officer who drafted the cover sheet inadvertently entered the wrong date in the "subject" section. ( See N.T. Trial, April 8, 2014, at 58-59.) Additionally, July 18, 2013 was a Thursday, not a Friday, which supports Officer McClain's explanation. In any event, the jury heard testimony about the inconsistency and resolved it in favor of the Commonwealth.
Appellant insists he is excused from waiver, claiming our Supreme Court announced a new rule of law in Knox , while his case was pending on direct appeal. In Knox , our Supreme Court interpreted Section 306 of the Crimes Code (governing accomplice liability) as rejecting the earlier and expansive "common-design" and "natural-and-probable consequences" doctrines. The Court explained that under Section 306, "status as an accomplice relative to some crimes within a larger criminal undertaking or episode no longer per se renders a defendant liable as an accomplice for all other crimes committed. Rather, closer, offense-specific analysis of intent and conduct is required." Knox , supra at 471, 105 A.3d at 1197 (internal citation omitted). The General Assembly enacted Section 306 of the Crimes Code on December 6, 1972, effective June 6, 1973. Thus, Appellant is not entitled to retroactive application of Knox or excused from waiver, because Knox did not announce a "new rule of law." See Commonwealth v. Hughes , 581 Pa. 274, 865 A.2d 761 (2004) (defining "new rulings" as those which break new ground or impose new obligation on states or federal governments, or, stated otherwise, where result was not dictated by precedent existing at time defendant's conviction became final).
See Commonwealth v. Golphin , 161 A.3d 1009 (Pa.Super. 2017), appeal denied, ___ Pa. ___, 170 A.3d 1051 (2017) (explaining once trier of fact decides there was conspiratorial agreement and defendant intentionally entered into agreement, defendant may be liable for overt acts committed in furtherance of conspiracy regardless of which co-conspirator committed act).
The Commonwealth claims Appellant's fourth issue is waived for failure to raise it in his concise statement. Nevertheless, the record shows Appellant preserved this issue in his Supplemental Rule 1925(b) statement. ( See Supplemental Rule 1925(b) statement, filed November 29, 2016, at 3 ¶ 5(e)). --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/22/2017
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