Opinion
1190 MDA 2020 J-A12042-21
08-02-2021
COMMONWEALTH OF PENNSYLVANIA v. BRADLEY JAY TRUETT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 17, 2020 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000865-2015
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM
MUSMANNO, J.
Bradley Jay Truett ("Truett") appeals from the judgment of sentence imposed following his conviction of drug delivery resulting in death ("DDRID"), delivery of heroin, and criminal use of a communication facility. We affirm.
In its Opinion and Order denying Truett's Omnibus Pre-Trial Motion, the suppression court set forth its Findings of Fact as follows:
On July 23, 2014, Detective Travis Carbaugh [("Det. Carbaugh")] of the Waynesboro Police Department was called to the scene of an apparent overdose death at 347 Viewpoint Way, Borough of Waynesboro, Franklin County. The decedent was Byron Rock [("Rock")].
Upon searching the residence where [Rock's] body was found, the police recovered a cellular telephone. The phone was located in the bedroom with [Rock's] body. The police seized the phone; through subsequent investigation it was determined that the cell phone belonged to [Rock]. Det. Carbaugh searched the
contents of the phone in an effort to discover any information relating to the source of the controlled substances that apparently caused [Rock's] death. Det. Carbaugh did not seek the consent of the next of kin of [Rock, ] nor did he obtain a search warrant prior to searching the phone. Information [i.e., text messages from a phone number associated with Truett, ] contained in the phone led Det. Carbaugh to suspect [Truett] was the source of the drugs that caused [Rock's] death.
Through his investigation, Det. Carbaugh developed a possible address where [Truett] was residing; the address was 147 W. North Street in the Borough of Waynesboro. Det. Carbaugh had been attempting to locate [Truett] at this time. On August 28, 2014, Det. Carbaugh traveled to the W. North Street location and observed a notice posted on the door of the residence in relation to eviction proceedings. At the time Det. Carbaugh arrived[, ] the door was closed. However, the property manager (hereinafter "[the] landlord") … was inside the subject residence.
Det. Carbaugh spoke with the landlord. She advised Det. Carbaugh that [Truett's] name was not on the lease and he did not have permission to reside there. She further advised that she had initiated eviction proceedings against the leaseholder, Laura Jewel [("Jewel")], and that the property had been abandoned.[FN1] This was consistent with Det. Carbaugh's belief that [Truett] was evading law enforcement.[FN 2] The landlord believed she had authority over the property at the time Det. Carbaugh spoke with her, and she granted him permission to enter and search the residence. Det. Carbaugh entered the residence and searched it; there was evidence in the residence that Det. Carbaugh seized and the Commonwealth intend[ed] to use at trial.[FN 3]
[FN 1] [The landlord] testified that, at some point prior, she had received a phone call from Children and Youth Services [("CYS")] asking where [] Jewel's children were; Jewel had four children that were permitted to reside with her on the lease. In response to the CYS phone call, [the landlord] went to the property and observed that "everything was gone" and "they had left." However, she discovered the oldest of Jewel's children inside the residence, and the landlord advised her that she could remain in the residence without Jewel residing there. According to the landlord, the child had climbed into the residence through an unlocked upstairs window.
[FN 2] Det. Carbaugh had "staked out" the residence in the week or two prior to August 28, 2014, in an effort to locate [Truett]. He watched the residence for approximately an hour[, ] two or three times over the course of a week; during his times watching the residence, Det. Carbaugh observed no person or other activity connected to the residence that suggested anyone was residing there. Indeed, Det. Carbaugh did not locate the actual named lessee at the residence.
[FN 3] In his Omnibus [Pre-Trial Motion], [Truett] d[id] not identify what evidence was gathered by Det. Carbaugh from the residence. In addition, neither party presented evidence at the hearing regarding what, specifically, was found in the residence that the Commonwealth intend[ed] to use. …Opinion and Order, 7/13/2018, at 1-3 (footnotes in original; one footnote omitted). Truett was ultimately located and taken into custody.
Several continuances and changes in counsel followed. On December 13, 2017, Truett, pro se, filed a Motion to Dismiss pursuant to Pa.R.Crim.P. 600. Counsel subsequently filed a Motion to Dismiss, as well as an Amended Motion to Dismiss, pursuant to Rule 600, on Truett's behalf. On January 2, 2018, after filing the Amended Motion to Dismiss, counsel filed a Motion to Withdraw as counsel, citing Truett's continued pro se filing of letters and documents with the clerk of courts, which disclosed potential trial strategy, witness names, and potential defense experts. By an Order entered on February 12, 2018, the trial court permitted counsel to withdraw, and appointed Truett new counsel. The trial court also continued the hearing on the Motion to Dismiss.
The Order is dated February 5, 2018.
Following a hearing on February 22, 2018, the trial court granted defense counsel's oral Motion for leave to file a new Rule 600 motion. The trial court directed Truett to file such motion by March 9, 2018, and for the Commonwealth to file a response within the following week. Additionally, the trial court scheduled a hearing for March 19, 2018, and "caution[ed] both parties that we will not delay further in this matter…." Order, 2/23/18.
Truett, through counsel, filed a Motion to Dismiss pursuant to Rule 600. The Commonwealth filed an Answer. The trial court conducted a hearing on Truett's Motion to Dismiss and, on March 26, 2018, entered an Opinion and Order denying the Motion to Dismiss.
On April 20, 2018, Truett filed an Omnibus Pre-Trial Motion, including, inter alia, a Motion to suppress evidence found at the residence located at 147 W. North Street, and a Motion to suppress evidence obtained through the search of Rock's cell phone. The Commonwealth filed an Answer to Truett's Motions to suppress. The trial court conducted a hearing, and subsequently directed the parties to file post-hearing briefs in support of their respective positions. Both parties complied. On July 13, 2018, the trial court issued an Opinion and Order denying Truett's Omnibus Pre-Trial Motion.
Additional continuances and changes in defense counsel followed. A jury ultimately convicted Truett of the above-described offenses. The trial court deferred sentencing and ordered the preparation of a pre-sentence investigation report. On January 17, 2020, the trial court sentenced Truett to a term of 120-480 months in prison, plus a fine and restitution for DDRID.For the criminal use of a communication facility conviction, the trial court imposed a consecutive term of 18-84 months in prison, plus a fine.
The convictions of delivery of heroin and DDRID merged for sentencing purposes.
Truett filed a timely Post-Sentence Motion on January 27, 2020. A hearing on the Motion was first scheduled for March 12, 2020, but then continued until March 30, 2020. Prior to the scheduled hearing, the Pennsylvania Supreme Court declared a statewide judicial emergency, which generally closed courts to the public "beginning at the close of business on March 19, 2020, and lasting through at least April 3, 2020…." In re: General Statewide Judicial Emergency, 228 A.3d 1283 (Pa. filed March 18, 2020) (per curiam); see also In re: General Statewide Judicial Emergency, 230 A.3d 1015 (Pa. filed April 28, 2020) (per curiam) (suspending most filing deadlines for the period between March 19, 2020, and May 8, 2020). Truett's counsel was subsequently granted permission to withdraw, and the trial court appointed new counsel. On May 11, 2020, the trial court entered an Order scheduling a hearing on Truett's Post-Sentence Motion for June 11, 2020. On June 12, 2020, Truett filed a Motion to extend the deadline in which to decide his Post-Sentence Motion, citing the judicial emergency and the difficulty of scheduling video conferencing through the prison. The trial court granted the Motion and extended the deadline by 30 days. The trial court scheduled the hearing for July 31, 2020. The hearing was conducted as scheduled, and on August 12, 2020, the trial court entered an Order denying Truett's Post-Sentence Motion. Truett filed a Notice of Appeal on September 9, 2020. Truett subsequently filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
The trial court attributed the delay between the filing of the Post-Sentence Motion and its ultimate ruling to the judicial emergency and "the significant difficulty in scheduling [Truett's] participation in the hearing via Advanced Communication Technology." Order, 8/12/20.
Regarding the timeliness of Truett's appeal, we observe that when a defendant files a post-sentence motion, a notice of appeal must be filed "within 30 days of the entry of the order deciding the motion[, or] within 30 days of the entry of the order denying the motion by operation of law…." Pa.R.Crim.P. 720(A)(2)(a)-(b); see also id. 720(B)(3)(a) (providing that if a judge fails to decide a post-sentence motion within 120 days, it shall be deemed denied by operation of law). The 120-day period for deciding Truett's Post-Sentence Motion expired on May 26, 2020. Ultimately, for the reasons set forth above, the hearing did not occur until July 31, 2020, and the trial court did not issue its decision until August 12, 2020. In light of the unique circumstances surrounding the COVID-19 pandemic, and the scheduling difficulties arising therefrom, we will consider Truett's appeal as timely filed. Moreover, the docket lacks any indication that the Post-Sentence Motion was denied by operation of law at the end of the 120-day period. See Pa.R.Crim.P. 720(B)(3)(c) (providing that "[w]hen a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court"); see also Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (declining to quash the appellant's appeal, which was filed beyond the 120-day period in which the court must decide on a post-sentence motion, because the failure by clerk of courts to enter an order deeming the appellant's post-sentence motion denied by operation of law constituted a breakdown in the court system).
Truett now raises the following issues for our review:
1. Whether the trial court erred in allowing the trial beyond the 365[-]day[ ]period prescribed by [Pa.R.Crim.P.] 600 by not sufficiently considering [Truett's] Rule 600 [M]otion to [D]ismiss and not sufficiently assessing whether there is excludable time and/or excusable delay in the 648 days [prior] to trial[?]
2.Whether the [t]rial [c]ourt erred by failing to instruct the jury relating to the [DDRID] charge[, ] as the court's instructions did not sufficiently advise the jury of the requirement of "but-for causation[]"[?]
3. Whether the trial court abused its discretion in precluding testimony regarding the criminal history of a key prosecution witness[, ] which hindered [Truett's] ability to mount a defense to include witness [Christopher] Hick[s's ("Hicks") background as a drug dealer[?]
4. Whether the trial court erred in denying [Truett's M]otion to suppress evidence found at … 147 W. North St.[, ] where property was searched after it was simply alleged by the property owner that [Truett] had abandoned the property[?]
5. Whether during [Truett's] trial, the prosecutor engaged in various forms of misconduct[, ] including making a statement[, ] "The Defendant's full-time job was peddling poison on the streets[]"[?] At no time during the trial was the statement supported by evidence of the record and it created prejudice.
6. Whether the evidence presented was insufficient to establish that every element of [DDRID] was proven, that the delivery: (1) was committed by the accused; and[] (2) the drug delivered caused the victim's death-as it fails to sufficiently indicate an adequate level of causation for the result-of-conduct[?]Brief for Appellant at 9 (issues renumbered).
Hicks is Truett's alleged co-conspirator.
In his first claim, Truett contends that the trial court erred by allowing his trial to begin beyond the 365-day period, and by failing to sufficiently consider his Rule 600 Motion. Id. at 20. Truett points out that charges were filed against him on two separate occasions: first, on July 25, 2014, he was charged with delivery of heroin, conspiracy, and criminal use of a communication facility; these charges were withdrawn, and on February 23, 2015, the charges were re-filed, as amended to include DDRID. Id. at 21-22. Truett argues that the mechanical run date for Rule 600 purposes is July 25, 2014, when the first Criminal Complaint was filed, because the re-filed charges were not based on new evidence. Id. at 23. Thus, Truett claims, the Commonwealth did not exercise due diligence in bringing him to trial. Id. at 27-28.
"With regard to claims brought under Rule 600, we must determine whether the trial court committed an abuse of discretion." Commonwealth v. Murray, 879 A.2d 309, 312 (Pa. Super. 2005).
The proper scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party.
When considering the trial court's ruling, an appellate court may not ignore the dual purpose behind Rule 600. The Rule serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society.
In determining whether an accused's right to a speedy trial has been violated, consideration must be given to
society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule 600 was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in a manner consistent with society's right to punish and deter crime. In considering these matters, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. …Id. at 312-13 (citations omitted).
Rule 600 provides, in pertinent part, as follows:
(A) Commencement of Trial; Time for Trial
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of time within which trial must commence. Any other periods of delay shall be excluded from the computation.
(3)(a) When a judge or issuing authority grants or denies a continuance:
(ii) the judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with this rule.Pa.R.Crim.P. 600; see also Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018) (stating that "[b]y the terms of Rule 600, the Commonwealth must bring a defendant to trial within 365 days from the date upon which a written criminal complaint is filed.").
"The first step in determining whether a technical violation of Rule 600 has occurred is to calculate the 'mechanical run date.'" Murray, 879 at 313. "The mechanical run date is calculated by adding 365 days to the date the criminal complaint is filed." Commonwealth v. Peterson, 19 A.3d 1131, 1137 n.6 (Pa. Super. 2011).
The mechanical run date can be modified or extended by adding any periods of time in which the defendant causes delay. Once the mechanical run date is modified accordingly, it then becomes an "adjusted run date."
Rule 600 takes into account both "excludable time" and "excusable delay." "Excludable time" is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his whereabouts was unknown and could not be determined by due diligence; any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the
unavailability of the defendant or the defendant's attorney; and/or (b) any continuance granted at the request of the defendant or the defendant's attorney. The "due diligence" required under Rule 600(C)(1) pertains to the Commonwealth's efforts to apprehend the defendant. The other aspects of Rule 600(C) defining "excludable time" do not require a showing of due diligence by the Commonwealth. "Excusable delay" is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence.Murray, 879 at 313 (citations omitted); see also Commonwealth v. Burno, 154 A.3d 764, 793-94 (Pa. 2017) (explaining that excusable delay is not calculated against the Commonwealth in a Rule 600 analysis, as long as the Commonwealth acted with due diligence at all relevant times); Commonwealth v. Morgan, 239 A.3d 1132, 1137 (Pa. Super. 2020) (stating that, "in the most general terms, when the Commonwealth causes delay, the Rule 600 clock continues to tick; when the defendant causes the delay, the clock stops." (citation omitted)). Additionally, "[t]he Commonwealth bears the burden of proving due diligence by a preponderance of the evidence. Due diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing that the Commonwealth has put forth a reasonable effort." Burno, 154 A.3d at 794 (citations and quotation marks omitted).
In cases where the Commonwealth files a complaint, the complaint is withdrawn or dismissed, and the Commonwealth then re-files the charges in a subsequent complaint, there are additional principles to keep in mind. If, for example, the Commonwealth withdraws the first complaint in an attempt to avoid an imminent Rule 600 violation and then re-files the charges in hopes of circumventing that rule, then the Rule 600 time for
the second complaint will be calculated from the filing of the first complaint.
However, if the Commonwealth is diligent in prosecuting a complaint, and if the complaint is withdrawn or dismissed because of factors beyond the Commonwealth's control, then the Commonwealth, upon re-filing the charges in a second complaint, is entitled to have the time under Rule 600 run from the date of that second filing. Accordingly, in cases of subsequent complaints, the law requires that Rule 600 courts evaluate whether the Commonwealth was diligent with respect to the initial complaint.
Additionally, if the Commonwealth was diligent in prosecuting the first complaint, the Commonwealth has no obligation under Rule 600 to re-file the charges within any particular time after the dismissal of the first complaint. This principle arises from the fact that, while no complaint is pending, the language of Rule 600 is simple inapplicable.Commonwealth v. Claffey, 80 A.3d 780, 786-87 (Pa. Super. 2013) (citations omitted).
Following the March 19, 2018, hearing on Truett's Motion to Dismiss, the trial court set forth the following findings of fact concerning the filing of charges against Truett:
On July 25, 2014, Det. Carbaugh filed charges of delivery of a controlled substance, criminal use of a communication facility, and conspiracy against [Truett]. …
When he filed the charges, Det. Carbaugh obtained a warrant for [Truett's] arrest. Det. Carbaugh then attempted to arrest [Truett] at [Truett's] last known residence, but was unsuccessful. Det. Carbaugh was then off-duty until the middle of August. Upon returning to work, Det. Carbaugh conducted surveillance on [Truett's] residence in an effort to apprehend him. Det. Carbaugh was again unsuccessful. Within a day or two of the incident, Det. Carbaugh interviewed the alleged co-conspirator …, [] Hicks. Hicks assisted Det. Carbaugh in trying to locate [Truett];
they even arranged a meet-up with [Truett] as a ruse to take [Truett] into custody. [Truett] did not show up.
In late August 2015, Det. Carbaugh received information on a possible second address for [Truett] in Roxbury; this information was provided from the FBI fugitive task force. Upon investigation with the United States Postal Service, Det. Carbaugh learned that the address in Roxbury was an old address for [Truett]. Det. Carbaugh also obtained a possible address for [Truett] through the county's [CYS]; that agency had an open case involving [Truett's] girlfriend. Det. Carbaugh was still unable to locate [Truett] with the CYS information. Additionally, Det. Carbaugh was aware that [Truett] was on active supervision with the Franklin County Adult Probation Office. Det. Carbaugh spoke with [Truett's] supervising officer; however, again, this did not result in Det. Carbaugh locating [Truett] to take him into custody.
In late September or early October 2014, Det. Carbaugh received the [C]oroner's report from the death of [] Rock. Det. Carbaugh spoke with Assistant District Attorney David Drumheller from the Franklin County District Attorney's Office [("ADA Drumheller")]. Based on his review of the [C]oroner's report, ADA Drumheller advised Det. Carbaugh that the Commonwealth would not be pursuing a charge of [DDRID] against [Truett].
In late January 2015, ADA Drumheller spoke again with Det. Carbaugh. ADA Drumheller advised Det. Carbaugh that he had spoken directly with the pathologist and reviewed the case with the District Attorney and Coroner. Based upon these additional discussions, the Commonwealth was now willing to proceed with charging [Truett] with DDRID. ADA Drumheller advised Det. Carbaugh to withdraw the charges he filed in July 2014, and refile them with an added count of DDRID. There was no discussion between ADA Drumheller and Det. Carbaugh regarding Pa.R.Crim.P. 600 (speedy trial). Det. Carbaugh then did as instructed, withdrawing and refiling the charges on February 23, 2015; the new [C]riminal [C]omplaint contained the added charge of DDRID.
Fifteen days after re-filing the charges, Det. Carbaugh received information on an address for [Truett] in the State of Maryland. Det. Carbaugh referred this information to the Pennsylvania State Police (PSP) Fugitive Task Force. PSP communicated with law enforcement authorities in Maryland and
learned that [Truett] was a suspect in an arson case there. Shortly thereafter, [Truett] was taken into custody.Trial Court Opinion (Motion to Dismiss), 3/26/18, at 1-3.
Regarding the time between the filing of the first and second Criminal Complaints, the trial court concluded that the record "is devoid of any evidence of intent on the part of the Commonwealth to evade or thwart [Truett's] speedy trial right when it withdrew the charges and refiled them in February 2015." Id. at 12. Additionally, the trial court concluded that the Commonwealth demonstrated due diligence in prosecuting the first Criminal Complaint, and therefore, the mechanical run date for Rule 600 purposes is February 23, 2015. Id. at 12-14. Specifically, the trial court noted Det. Carbaugh's ongoing efforts to locate Truett during the time period between the first and second Criminal Complaints. Id. at 12-13.
Although the second Criminal Complaint was amended to include a DDRID charge after the initial review by the Coroner, Det. Carbaugh testified that he had been informed that the District Attorney's Office had followed up directly with the pathologist and the Coroner before deciding to include the DDRID charge. N.T., 3/19/18, at 8, 15; Trial Court Opinion (Motion to Dismiss), 3/26/18, at 13. We therefore agree with the trial court's conclusion that there is no evidence in the record to support an assertion that the Commonwealth filed the second Criminal Complaint merely in an attempt to circumvent Rule 600. See Claffey, supra. Further, the record confirms the trial court's determination that the Commonwealth exercised due diligence in prosecuting the first Criminal Complaint. Truett remained a fugitive and was not located until approximately two weeks after the second Criminal Complaint was filed. During that time, Det. Carbaugh made several attempts to locate Truett at several addresses, surveilled Truett's last known address, attempted to contact Truett through Hick, contacted government agencies, and received a possible address from the FBI. See id. at 13-14; see also id. at 13 n.31 (stating that "Det. Carbaugh did far more than sit on his hands and wait for [Truett's] serendipitous apprehension[.]"); Pa.R.Crim.P. 600, cmt. (providing that "the period of time between the filing of the written complaint and the defendant's arrest [must be excluded from computations], provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence[.]"). Based upon the foregoing, we discern no abuse of the trial court's discretion in applying a mechanical run date of February 23, 2015, 365 days after the second Criminal Complaint was filed. Accordingly, we cannot grant Truett relief on this claim.
Truett does not allege that his speedy trial rights were violated assuming a mechanical run date of February 23, 2015, nor does he challenge the trial court's determinations regarding any other delays. For a full analysis of excludable time under Rule 600, see Trial Court Opinion (Motion to Dismiss), 3/26/18, at 14-15.
In his second claim, Truett contends that the trial court did not sufficiently advise the jury regarding "but-for" causation in its DDRID instruction. Brief for Appellant at 15. Truett cites Burrage v. United States, 571 U.S. 204 (2014), and argues that a "but-for" finding to prove actual cause. Brief for Appellant at 15.
In Burrage, the United States Supreme Court analyzed 21 U.S.C.A. § 841(b)(1)(C), a federal statute providing for an enhanced sentence when death or serious bodily injury "results from," inter alia, the delivery of a schedule I or II controlled substance. The Supreme Court held that a defendant cannot be liable under the penalty enhancement provision unless the use of the drug distributed by the defendant is a but-for cause of the death. Burrage, 571 U.S. at 218-19.
Truett's one-page argument concerning this claim is largely undeveloped, and significantly, does not identify the jury instruction given by the trial court. See Pa.R.A.P. 2119(a) (providing that an appellant's argument shall contain "such discussion and citation of authorities as are deemed pertinent.").
We review a challenge to a jury instruction for an abuse of discretion or an error of law. We must consider the charge as a whole, rather than isolated fragments. We examine the entire instruction against the background of all evidence presented, to determine whether error was committed. A jury charge is erroneous if the charge as a whole is inadequate, unclear, or has a tendency to mislead or confuse the jury rather than clarify a material issue. Therefore, a charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said. Furthermore, our trial courts are invested with broad discretion in crafting jury instructions, and such instructions will be upheld so long as they clearly and accurately present the law to the jury for its consideration. …Commonwealth v. Rush, 162 A.3d 530, 540 (Pa. Super. 2017) (citations, quotation marks and brackets omitted).
Regarding DDRID, the trial court charged the jury as follows:
Count [O]ne in this case is drug delivery resulting in death. To find the defendant guilty of this offense you must find that the following elements have been proven beyond a reasonable doubt.
First, that the defendant administered, dispensed, delivered, gave, prescribed, sold or distributed a controlled substance or a counterfeit controlled substance to a person.
Second, that the defendant did so intentionally, that is, it was his conscious object to administer, dispense, deliver, give, prescribe, sell or distribute a controlled substance or a counterfeit controlled substance to a person.
Third, that the administration, dispensation, prescription, sale or distribution was in violation of the Controlled Substance Drug Device and Cosmetic Act.
Fourth, that the person has died as a result of using the substance.
[Truett] has been charged with causing the death of [] Rock. To find [Truett] guilty of [DDRID, ] you must find beyond a reasonable doubt that [Truett's] conduct was a direct cause of his death. In order to be a direct cause of a death[, ] a person's conduct must be a direct and substantial factor in bringing about the death. There can be more than one direct cause of a death. A defendant who is a direct cause of a death may be criminally liable even though there are other direct causes.N.T., 12/13/19, at 71-72.
The trial court used the Commonwealth's requested points for charge for the offense of DDRID. In its Requested Points for Charge, the Commonwealth identified the Pennsylvania Suggested Standard Jury Instruction 15.2506 - Drug Delivery Resulting in Death, for offenses committed on or after September 7, 2011; the language concerning direct cause was taken from Pennsylvania Suggested Standard Jury Instruction 15.2501C - Criminal Homicide - Causation. See Commonwealth's Requested Points for Charge, 11/22/19, at 3-4. Truett filed an Objection concerning this language. See Defendant's Objection to Commonwealth's Proposed Jury Instruction, 12/09/19, at 1 (unnumbered).
The Crimes Code defines the offense of DDRID as follows:
§ 2506. Drug delivery resulting in death
(a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of … The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.18 Pa.C.S.A. § 2506(a). DDRID therefore "consists of two principal elements: (i) intentionally administering, dispensing, delivery, giving, prescribing, selling or distributing any controlled substance or counterfeit controlled substance and (ii) death caused by ("resulting from") the use of that drug." Commonwealth v. Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015) (footnote omitted).
Prior to the start of trial, the trial court addressed Truett's Objection to the Commonwealth's requested points for charge concerning DDRID. The trial court noted Truett's citation to Burrage, but concluded that it was not bound by the Supreme Court's decision because it was based on an interpretation of federal statutory law. N.T., 12/10/19, at 4-5. The trial court also concluded that the Commonwealth's proposed jury instruction was proper under Pennsylvania law. Id. at 6-7. Truett did not otherwise raise an objection at the time the jury instruction was read to the jury.
Our review of the jury instruction and the relevant law defining DDRID confirms that the instruction provided by the trial court adequately and clearly reflected the law, and had no tendency to mislead or confuse the jury. See Rush, supra. Because we discern no abuse of discretion or error by the trial court, Truett is not entitled to relief on this claim.
In his third claim, Truett argues that the trial court abused its discretion by precluding testimony concerning Hicks's criminal history. Brief for Appellant at 32. Truett claims that he should have been permitted to introduce evidence that Hicks had a prior conviction of drug delivery, which he could have used to impeach Hicks's testimony. Id. at 32-33. According to Truett, the Commonwealth failed to disclose to him Hicks's prior involvement as a confidential informant. Id. at 33.
Initially, we observe that Truett fails to cite to the Pennsylvania Rules of Evidence in support of his claim. Additionally, Truett's argument conflates the issues of relevance and impeachment. Because Truett cites only to case law defining the evidentiary definition of relevance, we limit our discussion to relevance.
Truett does not argue that Hicks's prior conviction is admissible as a crimen falsi conviction. See Pa.R.E. 609(a) (providing that, "[f]or the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.").
The determination of the scope and limits of cross-examination are within the discretion of the trial court, and we cannot reverse those findings absent a clear abuse of discretion or an error of law. An abuse of discretion is not a mere error in judgment, but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Furthermore, when a trial court indicates the reason for its decision our scope of review is limited to an examination of the stated reason.Commonwealth v. Davis, 17 A.3d 390, 395 (Pa. Super. 2011) (citations, quotation marks, and brackets omitted).
"Relevance is the threshold for admissibility of evidence." Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation omitted); see also Pa.R.E. 402. "Evidence is relevant if … it has any tendency to make a fact more or less probable than it would be without the evidence[, ] and the fact is of consequence in determining the action." Pa.R.E. 401.
In its Opinion, the trial court stated that "evidence of the prior delivery conviction is not motive of cooperating with the police in a later, unrelated, investigation into this DDRID." Trial Court Opinion, 10/28/20, at 7 (emphasis in original). Additionally, during a sidebar discussion at trial, the trial court indicated that it would not be "improper for [defense counsel] to establish the reason [Hicks] has begun cooperating," but that defense counsel could not elicit testimony about the prior conviction. N.T., 12/11/19, at 60; see also id. (stating, "We need that clarified. I don't want the jury confusing the fact that he cooperated because he got in trouble for [] delivering being confused with this delivery in this case.").
Our review confirms that the trial court permitted Truett to examine Hicks's criminal history, including prior involvement in drug activity, and his relationship with law enforcement as a confidential informant. See Trial Court Opinion, 10/28/20, at 7-9; N.T., 12/11/19, at 51-56, 58-59, 61. Accordingly, we agree with the trial court's determination that additional evidence of Hicks's prior conviction of delivery of a controlled substance was not relevant to the instant matter, and we can afford Truett no relief on this claim.
In his fourth claim, Truett challenges the suppression court's denial of his Motion to suppress evidence found in the residence at 147 W. North Street. Brief for Appellant at 35. Truett argues that, according to the lease, the lessor of the premises was Kenneth L. Miller, rather than the landlord. Id. According to Truett, the landlord lacked authority to enter the residence or to grant Det. Carbaugh permission to enter the residence. Id. at 37. Additionally, Truett contends that Det. Carbaugh had no evidence that the residence had been abandoned. Id. at 38; see also id. at 37 (acknowledging that Judgment of possession had been entered in favor of the landlord regarding the residence on August 28, 2014, but arguing that the landlord was not permitted to enter the premises, or grant Det. Carbaugh to do so, until 10 days later).
Truett's argument, as in his Motion to suppress, fails to identify any evidence recovered from the residence that the Commonwealth used against him at trial.
In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation omitted).
Warrantless searches and seizures are considered to be unreasonable and therefore, prohibited, except for a few established exceptions pursuant to both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
Both the federal and Pennsylvania constitutions permit third party consent to a search. When police officers obtain the voluntary consent of a third party who has the authority to give consent, they are not required to obtain a search warrant based upon probable cause. …Commonwealth v. Hughes, 836 A.2d 893, 900 (Pa. 2003) (internal citations and quotation marks omitted). "The third-party consent to search is an exception to the exclusionary rule. To evaluate the voluntariness of the consent to a warrantless search, the court must examine the totality of the circumstances." Commonwealth v. Reese, 31 A.3d 708, 722 (Pa. Super. 2011).
Third-party consent may be derived from common or apparent authority. See generally Commonwealth v. Basking, 970 A.2d 1181, 1184 (Pa. Super. 2009) (describing the doctrines of common authority and apparent authorities as "corollaries to the consent exception to the warrant requirement[]").
The United States Supreme Court has held that a third party has actual authority to consent to a search if he/she "possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected." [United States v.] Matlock, 415 U.S. 164[, ] 171 [(1974)]…. The Matlock Court described "common authority" as follows:
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.Id. at n.7 (citations omitted). Basking, 970 A.2d at 1188.
Further, regarding third-party consent by landlords, "common authority is not implied by a mere property interest such as that of a landlord. To that end, a landlord or lessor cannot consent to a search of a tenant's premises, regardless of the lessor's right to enter and inspect." Commonwealth v. Davis, 743 A.2d 946, 951 (Pa. Super. 1999) (citations and quotation marks omitted). However, a lessee's abandonment of a residence may alter this analysis. See generally Commonwealth v. Dean, 940 A.2d 514, 519 n.2 (Pa. Super. 2008) (stating that "in the absence of abandonment, a landlord's … consent to search leased premises is not effective as against the tenant…." (emphasis added; citation and quotation marks omitted)).
To prevail on a suppression motion, a defendant must demonstrate a legitimate expectation of privacy in the area searched or effects seized, and such expectation cannot be established where a defendant has meaningfully abdicated his control, ownership or possessory interest. Simply put, no one has standing to complain of a search or seizure of property that he has
voluntarily abandoned. … [A]bandonment of a privacy interest is primarily a question of intent and may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could not longer retain a reasonable expectation of privacy with regard to it at the time of the search.Commonwealth v. Kane, 210 A.3d 324, 330-31 (Pa. Super. 2019) (citations, quotation marks, brackets and paragraph break omitted).
A third party's apparent authority to provide consent to search may also give rise to an exception to the exclusionary rule. See Commonwealth v. Perel, 107 A.3d 185, 192 (Pa. Super. 2014).
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.Id. (citation omitted).
Here, the trial court concluded that the landlord had both actual and apparent authority to provide consent to search the residence at 147 W. North Street. See Trial Court Opinion, 10/28/20, at 6-10. Regarding actual authority, the trial court stated that
[t]he uncontroverted testimony established that the landlord was contacted by [CYS] because that agency did not know where the
children of [] Jewel (the leaseholder) were. This is consistent with abandoning the residence. The evidence is uncontroverted that the landlord went to the residence and observed through the windows that "everything was gone" inside. Further, Det. Carbaugh had been watching the property over the course of a week or so in an effort to locate [Truett]. During his observations, there was no activity at the residence which would indicate anyone was living there.Id. at 8.
Further, regarding apparent authority, the trial court again pointed to Det. Carbaugh's repeated attempts to locate Truett, including staking out the residence. Id. at 9. The trial court also stated that
[w]hen Det. Carbaugh arrived at the residence, the landlord was already inside the residence; this fact is a potent indicator to an objective viewer that the landlord had physical possession of the residence and could consent. The landlord advised Det. Carbaugh that the property had been abandoned and that she had been granted possession by the Magisterial District Judge.Id. The trial court concluded that, based on the circumstances, Det. Carbaugh could reasonably have concluded that the landlord had authority to provide consent. Id.
The trial court's factual findings are supported by the record, and its legal conclusions are sound. See Arnold, supra. Accordingly, Truett is not entitled to relief on this claim.
In his fifth claim, Truett argues that the prosecutor engaged in misconduct during opening statements. Brief for Appellant at 39. Truett specifically refers to the following portion of the prosecutor's opening statement:
This case and what we're all here for today, this case is about a guy who pedaled [sic] poison on to our streets here in Franklin County. It's about a guy whose full-time job was to deal heroin in our community.
Ladies and gentlemen, because of his own actions[, ] a man is dead. A father lost his golfing buddy. A mother lost her son because of his decision to pump poison into our streets.Id. (citing N.T., 12/10/19, at 24-25). Truett claims that the statement was unsupported by evidence and created prejudice. Id. at 40. According to Truett, the prosecutor "injected his highly prejudicial personal opinion" of Truett. Id.
Our review of the trial transcript confirms that Truett did not raise an objection to the prosecutor's opening statement. Thus, this claim is waived. Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (stating that "[i]n order to preserve an issue for review, a party must make a timely and specific objection." (citation omitted)); see also Pa.R.A.P. 302(a) (providing that "[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal.").
Moreover, as the trial court noted in its Opinion, Truett's attorney agreed to the characterization of heroin as poison. Trial Court Opinion, 10/28/20, at 11; N.T., 12/10/19, at 30 (wherein, during the defense's opening statement, defense counsel stated, "[The prosecutor] in his opening statement said that this case was about someone who's dumping poison in the streets of Franklin County. I agree with that.").
In his sixth and final claim, Truett challenges the sufficiency of the evidence supporting his conviction. Brief for Appellant at 42. Truett argues that there was no direct evidence of the transaction between Truett and Rock; there was no DNA or fingerprint evidence connecting Truett to the heroin found in Rock's room; and there was nothing distinguishable about the heroin found at the scene. Id. Additionally, Truett challenges the credibility of Hicks's trial testimony. Id. Truett also renews his challenge to the jury instruction regarding DDRID. Id. at 43. According to Truett, he "should be granted a new trial, or alternatively, a modification of sentence to the lower end of the standard range…." Id. at 45.
Truett's argument is largely underdeveloped, and includes citations only to our standard of review, the Pennsylvania Suggested Standard Jury Instruction, and Burrage, which is not binding on this Court. See Pa.R.A.P. 2119(a).
To the extent that Truett attempts to challenge the discretionary aspects of his sentence, such claim is waived, as he failed to provide argument on the issue, include a separate Rule 2119(f) statement in his brief, or raise the issue in his Statement of Questions Involved. See Pa.R.A.P. 2119(a) (providing that an appellant's argument shall include "such discussion and citation of authorities as are deemed pertinent."), (f) (stating that "[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of he brief a concise statement of the reasons relied upon for allowance of appeal…."); Pa.R.A.P. 2116(a) (providing that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
The standard we apply in reviewing the sufficiency of the evidence is whether[, ] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact, while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015) (citation omitted). "Both direct and circumstantial evidence must be considered equally when assessing the sufficiency of the evidence …, and the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by relying wholly on circumstantial evidence." Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super. 2001).
In its Opinion, the trial court summarized the relevant testimony, and concluded that Truett's claim lacks merit. See Trial Court Opinion, 10/28/20, at 12-36. Significantly, the trial court pointed to the testimony of Detective Jason Taylor ("Det. Taylor"), a member of the Franklin County Drug Task Force. See id. at 19-21. Det. Taylor indicated that the heroin at the scene of Rock's death was found in unique packaging, which he previously had not seen in Franklin County. See id. at 20; N.T., 12/10/19, at 168-69 (wherein Det. Taylor explained that the heroin found at the scene was "placed in to [sic] a straw and then the straw was closed on each end by being burned and pressed or, you know, had some heat source and then being pressed together…."). "Similar items were recovered from [Truett's] apartment." Trial Court Opinion, 10/28/20, at 21; N.T., 12/10/19, at 176-77 (wherein Det. Taylor reviewed Commonwealth's Exhibit 56 (items recovered from Truett's apartment), and stated that there was a "clear straw. There's some smaller pieces cut. There's also one package in here-let me make sure. There's one package in here that appears to have burnt or heated ends to it that was similar to what we found in the room where [] Rock was found."). Upon review, we agree with the trial court's determination that the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, was sufficient to sustain Truett's DDRID conviction. We affirm on the basis of the trial court's Opinion as to this claim. See Trial Court Opinion, 10/28/20, at 12-36.
Additionally, to the extent that Truett asks us to reassess Hicks's credibility, we note that such task rests solely with the fact-finder. See Talbert, supra.
Judgment of sentence affirmed.
Judgment Entered.