Com. v. Bowmar-Sweet, T.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2022
• Docket: 429 MDA 2022
• Status: Unpublished

Opinion

J-S32037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TURRELL M. BOWMAR-SWEET : : Appellant : No. 429 MDA 2022

Appeal from the Judgment of Sentence Entered February 17, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000784-2021

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED: DECEMBER 19, 2022

Turrell Bowmar-Sweet appeals from the judgment of sentence, entered

in the Court of Common Pleas of Dauphin County, after he was convicted of

possession with intent to manufacture or deliver (PWID).1 After review, we

affirm.

On July 29, 2019, Vice Detective Nicholas Ishman from the City of

Harrisburg Police Bureau contacted a confidential informant (CI)2 to set up a

“controlled buy.” N.T. Jury Trial, 12/8/21, at 22. The CI informed Detective

Ishman that the target would be an individual named Turrell Sweet, known as ____________________________________________

1 35 P.S. § 780-113(a)(30).

2 Detective Ishman testified that the CI started working with the police after the CI’s friend died of a drug overdose. The CI felt an obligation to help. N.T. Jury Trial, 12/8/21, at 47. The CI is a heroin user, has never been charged with any crime, has aided in prior investigations with Detective Ishman, and has always been reliable. Id. at 46. J-S32037-22

“Face.” Id. at 29-30. While in Detective Ishman’s presence, the CI called

Bowmar-Sweet and ordered a bundle (10 bags) of heroin. Id. at 31-32.

Detective Ishman contacted Detective Shelby Day, employed by the Swatara

Police Department and assigned to the Dauphin County Drug Task Force, to

assist in the transaction. Id. at 22, 30.

Detective Ishman showed Detective Day a picture of Bowmar-Sweet, id.

at 72, and Detective Day searched the CI for contraband and illegal drugs.

Id. at 33. Following a negative search of the CI, Detective Day drove herself

and the CI in an unmarked police vehicle to the meeting location, the parking

lot of Beer King, located on the 600 Block of Division Street in Harrisburg. Id.

at 73. On the way to Beer King, Bowmar-Sweet advised the CI that only half

a bundle of heroin (5 bags) was available to purchase and that the new

purchase price would be $25. Id. at 74. Thereafter, Detective Day and the

CI pulled over to meet with Detective Ishman, who issued the correct amount

of cash. Id. at 74.

Upon arriving in the Beer King parking lot, the CI called Bowmar-Sweet,

who requested that the CI pull into an alleyway due to his concern about

cameras in the parking lot. Id. at 76, 82. Detective Day testified that

Bowmar-Sweet arrived at the unmarked vehicle and entered the passenger

side rear door. Id. at 76-77. Thereafter, the CI and Bowmar-Sweet

exchanged money for heroin, which had been placed “inside a kind of paper

towel napkin.” Id. at 82, 85. The parties stipulated the substance was heroin.

Id. at 43, 85. The transaction took less than ten seconds. Id. at 85.

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Surveillance photographs were taken during the controlled buy. See

Commonwealth Exhibits 2-6.

Following the transaction, Detective Day and the CI met Detective

Ishman3 at a prearranged location. Detective Day gave Detective Ishman the

drugs purchase from Bowmer-Sweet and the CI was searched again for drugs,

money or drug paraphernalia; the search was negative. Id. at 39.

On February 20, 2020, Bowmar-Sweet was charged with PWID and

criminal use of a communication facility.4 A jury trial was held on December

8, 2021, after which Bowmar-Sweet was found guilty of PWID.5 The court

deferred sentencing and ordered a pre-sentence investigation (PSI) report.

On February 17, 2022, Bowmar-Sweet was sentenced to two to four years’

incarceration, followed by five years of probation. Bowmar-Sweet filed a

timely notice of appeal on March 8, 2022. Both Bowmar-Sweet and the trial

court have complied with Pa.R.A.P. 1925. Bowmar-Sweet raises the following

issues for our review:

1. Whether the evidence was sufficient to show that []Bowmar- Sweet possessed with the intent to deliver heroin, when the photographic evidence was not clear, and the [CI] did not testify?

____________________________________________

3During the transaction, Detective Ishman was parked about a block away. N.T. Jury Trial, supra at 34.

4 18 Pa.C.S.A. § 7512.

5 The Commonwealth withdrew the criminal use of a communication facility charge.

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2. Whether the trial court erred in not providing the missing person jury instruction because the record lacks any claim, outside of a generic safety reason, that the informant could not be provided, particularly when the undercover officer who was with the [CI] during the drug transaction also testified?

Bowmar-Sweet first raises a challenge to the sufficiency of the evidence.

Our standard of review regarding challenges to the sufficiency of evidence are

well-settled:

[W]e evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving it the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Any doubt about the defendant’s guilt is to be resolved by the fact-finder unless the evidence is so weak and inconclusive that, as matter of law, no probability of fact can be drawn from the combined circumstances. Additionally, the Commonwealth may sustain its burden solely by means of circumstantial evidence.

Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) (citations

and quotations omitted).

“In applying the above test, the entire record must be evaluated[,] and

all evidence actually received considered. [T]he trier 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. Orr,

38 A.3d 868, 872-73 (Pa. Super. 2011). Additionally, facts and circumstances

established by the Commonwealth need not preclude every possibility of

innocence. Id. at 872.

Further, to sustain a conviction, evidence of identification need not be

positive and certain, and any indefiniteness or uncertainty in the identification

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testimony goes to its weight. Commonwealth v. Minnis, 458 A.2d 213, 234

(Pa. Super. 1983). “[A]lthough identification based solely on common items

of clothing and general physical characteristics is insufficient to support a

conviction, such evidence may be considered to establish identity along with

other circumstances and the proffered identification testimony.” Id. at 233

(citations omitted).

Here, Bowmar-Sweet contends that the Commonwealth failed to identify

him as the alleged dealer and, therefore, failed to prove that he constructively

possessed heroin. Appellant’s Brief, at 16. Specifically, Bowmar-Sweet claims

that the surveillance photographs merely show his general proximity to the

buy location, which is insufficient to prove his identity. Id. Additionally, he

argues the photographic evidence is blurred where “[The] photographs [are]

so indistinct that it is [the] equivalent of a general description of any black

man, walking across a local retail parking lot, wearing a hat which casts a

shadow against his face.” Id. This claim is meritless.

The crime of PWID is defined in the Crimes Code as follows: “[T]he

manufacture, delivery, or possession with intent to manufacture or deliver, a

controlled substance by a person not registered under this act, or a

practitioner not registered or licensed by the appropriate State board, or

knowingly creating, delivering, or possessing with intent to deliver, a

counterfeit controlled substance.” See 35 P.S. § 780-113(a)(30).

To prove PWID, the Commonwealth must prove either actual or

constructive possession. Commonwealth v. Macolino, 469 A.2d 132, 134

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(Pa. 1983). “Constructive possession [is] the ability to exercise conscious

dominion over the illegal substance[, along with] the power to control the

contraband and the intent to exercise that control.” Id. The intent to exercise

conscious dominion can be inferred from the totality of the circumstances. Id.

Instantly, a reliable CI had informed Detective Ishman that he could

purchase heroin from a male known as “Face,” whose name was “Turrell

Sweet.” N.T. Jury Trial, supra, at 46, 72. Detective Ishman heard the CI call

the target to arrange the purchase. Id. at 31. Detective Ishman’s testimony

connects this phone call to the individual present at the buy location. See id.

at 102 (Detective Ishman testifying, “In this case clearly we spoke to

somebody on the phone who met us at the exact location we agreed upon

with the exact amount of drugs we agreed upon, so I think it was pretty safe

to infer from that that our defendant was using that phone.”).

Moreover, Detective Day testified that she was presented with a picture

of Bowmar-Sweet prior to the transaction, id. at 73, she was present in the

car where the transaction occurred, and she positively identified the target as

Bowmar-Sweet. Id. at 96 (Detective Day testifying, “I identified [Bowmar-

Sweet] on the day of the transaction.”). Id. Detective Day’s identification is

based on more than general physical characteristics where she testified that,

“[t]he defendant [had] very distinctive [facial] markings [], which [she] could

clearly positively identify to be [Bowmar-Sweet.]” Id. at 77; see Minnis,

supra at 233. This testimony is supported by surveillance photographs. See

Commonwealth Exhibits 2-6. Indeed, describing Commonwealth Exhibit 4,

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Detective Day testified that “you can see the discoloration that is evident on

his face.” N.T. Jury Trial, supra at 80.

We agree with the trial court that the jury, having heard the detective’s

testimony and viewed the surveillance photographs, could reasonably have

inferred that Bowmar-Sweet was the target of the controlled buy and that he

intentionally or knowingly possessed heroin with an intent to deliver that

substance. See Trial Court Opinion, 5/2/22, at 5-7.

Next, Bowmar-Sweet argues that the trial court erred in not providing a

missing person jury instruction because the Commonwealth failed to produce

a material witness—namely the CI. Appellant’s Brief, at 26. Specifically,

Bowmar-Sweet contends that the CI is only available to the Commonwealth

and that the CI’s testimony would not be merely cumulative because the

informant was the person who initiated this operation. Bowmar-Sweet is

entitled to no relief.

Our standard of review regarding a trial court’s jury instructions is

whether the trial court abused its discretion or inaccurately stated the law.

See Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014). “A

trial court has broad discretion in phrasing its instructions, and may choose

its own wording so long as the law clearly, adequately, and accurately

presented to the jury for its consideration.” Id.

This Court has explained the “missing witness” adverse inference rule

as follows:

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When a potential witness is available only to one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not merely be cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference that it would have been unfavorable.

Commonwealth v. Evans, 644 A.2d 570, 573 (Pa. Super. 1995). Evans

lists circumstances where a trial court may properly refuse to provide a

missing person instruction such as when “[t]he testimony of such a witness is

comparatively unimportant, cumulative, or inferior to that already presented.”

Id.

Although we agree that the CI is only available to the Commonwealth,6

a review of the record confirms the trial court’s determination that the CI’s

testimony would have been cumulative. Trial Court Opinion, supra at 8-9.

In Commonwealth v. Payne, 656 A.2d 77, 80 (Pa. 1994), our Supreme

Court found that the testimony of a CI would not be cumulative where the

state trooper, who made an undercover purchase of drugs in the company of

the CI, was the only witness for the prosecution. Here, unlike in Payne, the

Commonwealth’s evidence consisted of two witnesses and surveillance

photographs. Thus, the CI’s testimony would have been cumulative to ____________________________________________

6 In Evans, this Court held that “merely because a [CI] has knowledge of a defendant’s nickname and whereabouts does not necessarily compel the conclusion that the defendant has any knowledge of or can reach the informant in order to subpoena the informant as a witness.” Id. at 555. Here, the CI knew Bowmar-Sweet’s nickname was “Face” and how to contact him. N.T. Jury Trial, supra at 29. Additionally, following the controlled buy, the police waited to arrest the target in order to protect the identity of the CI. Id. at 28. As such, Bowmar-Sweet is unlikely to know who the informant is and, thus, would be unable to contact the informant.

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Detective Ishman’s testimony regarding the initial phone call to Bowmar-

Sweet and cumulative to Detective Day’s testimony regarding the transaction.

Additionally, Detective Day’s identification testimony was supported by

surveillance photos. See Commonwealth Exhibits 2-6. Indeed, “where other

corroboration of the officer’s testimony exists, disclosure of the informant’s

identity is . . . not necessarily required.” Id. at 79.

Further, Bowmar-Sweet’s claim of mistaken identity based on conflicting

phone numbers on various police reports7 is unavailing. Detective Ishman

testified that the CI provided the telephone number that the CI used to contact

Bowmar-Sweet, which is also the phone number on the incident report. See

Commonwealth Exhibit 12. The number is also listed as Bowmar-Sweet’s

telephone number in the PSI. See Pre-Sentencing Investigation Report,

1/25/22, at 1.

In light of the foregoing, we conclude that the evidence, including the

reasonable inferences to be drawn therefrom, was sufficient to allow the jury

to find Bowmar-Sweet guilty of PWID. Lake, supra. Moreover, due to its

cumulative nature, we find that the trial court did not err in failing to give a

missing witness instruction. Evans, supra.

Judgment of sentence affirmed. ____________________________________________

7 Although Detective Ishman was asked to read the conflicting phone number from a document, Attorney McNulty does not identify the document on the record. N.T. Jury Trial, supra at 51. Further, Detective Ishman testified that the conflicting number was automatically populated from a previous incident involving Bowmar-Sweet and that is it common for individuals in the drug trade to have more than one phone number. Id. at 104.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/19/2022

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