Com. v. Edwards, R.

• Court: Superior Court of Pennsylvania
• Decided: November 15, 2016
• Docket: 3467 EDA 2015
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ROBERT LEE EDWARDS

Appellant No. 3467 EDA 2015

Appeal from the Judgment of Sentence April 27, 2015 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006848-2014

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 15, 2016

Appellant, Robert Lee Edwards, appeals from the judgment of

sentence entered on April 27, 2015, following his bench trial convictions for

possession of a controlled substance, possession with intent to deliver a

controlled substance (PWID), and criminal use of a communication facility.1

Upon review, we affirm.

We briefly summarize the facts and procedural history of this case as

follows. On June 22, 2014, at approximately 1:00 a.m. in Quakertown,

Pennsylvania, police witnessed a white Cadillac parked in an unlit area of a

Pizza Hut parking lot after business hours. After waiting five minutes,

Corporal Joshua Mallery, who was in uniform and driving a marked police ____________________________________________

1 35 P.S. § 780-113(a)(16), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512(a), respectively. J-S70006-16

car, parked to the side and behind the Cadillac. Based upon the time and

unlit location, he approached the driver’s side door with a flashlight.

Appellant, the only occupant of the vehicle, was sitting in the driver’s seat.

Corporal Mallery saw three cellular telephones in Appellant’s lap, one of

which was ringing incessantly. Corporal Mallory also saw loose cash,

including a $100.00 bill, in the partially opened, center console area of the

vehicle. Upon questioning, Appellant told Corporal Mallory he was waiting

for a friend by the name of Mike, but he did not know Mike’s last name and

could not say why he was waiting for Mike. Corporal Mallory noticed that

Appellant was shaking, breathing hard, and appeared nervous.

A backup officer arrived on the scene soon thereafter and parked 15 to

20 feet from Appellant’s car, but did not impede Appellant’s vehicle. When

the backup officer approached Appellant, he noticed an outgoing text

message on one of the cellular telephones in Appellant’s possession that

read, “Mike set me up.” Following a criminal record check of Appellant,

police discovered a previous drug arrest, but Appellant denied it. Corporal

Mallery summoned a canine (K9) unit to the scene and removed Appellant

from the vehicle. The K9 dog indicated controlled substances were located

in the driver’s seat area of the vehicle. Police impounded the vehicle and

obtained a search warrant for it. The search uncovered five cellular

telephones, $407.00 in cash, 1.10 grams of cocaine base, two empty vials,

and written chemical formulas for making crack cocaine. Corporal Mallery

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then obtained search warrants to obtain the records for all five recovered

cellular phones.

On July 9, 2014, the Commonwealth charged Appellant with the

aforementioned criminal offenses, as well as possession of drug

paraphernalia.2 On December 29, 2014, Appellant filed a pro se motion to

suppress evidence. Counsel for Appellant filed another motion to suppress

evidence on February 4, 2015. The trial court denied relief following a

suppression hearing on March 4, 2015. On April 27, 2015, the trial court

held a bench trial, incorporating the testimony from the suppression hearing

into the record. At the conclusion of trial, the trial court found Appellant

guilty of possession of a controlled substance, PWID, and criminal use of a

communication facility. The trial court sentenced Appellant to one to three

years of incarceration for PWID, with a consecutive two-year sentence of

probation for criminal use of a communication facility. Because possession

of a controlled substance merges with the offense of PWID, the trial court

imposed no further penalty on that charge. This timely appeal resulted.3 ____________________________________________

2 35 P.S. § 790-113(a)(32). 3 On May 4, 2015, Appellant filed post-sentence motions. The trial court held a hearing and denied relief on July 13, 2015. On October 5, 2015, Appellant filed a counseled petition pursuant to the Post Conviction Relief Act (PCRA), requesting the nunc pro tunc reinstatement of Appellant’s direct appeal rights. By order entered on October 13, 2015, the trial court granted the request. On November 12, 2015, Appellant filed a notice of appeal. On November 14, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). (Footnote Continued Next Page)

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On appeal, Appellant presents the following issues for our review:

1. Did the lower court err when it denied [Appellant’s] motion to suppress[] physical evidence seized following an investigative detention that was unsupported by reasonable suspicion that [Appellant] was engaged in criminal activity?

2. Did the lower court err in finding there was sufficient evidence to prove all the requisite elements of possession with intent to deliver a controlled substance, simple possession of a controlled substance and criminal use of a communication facility when the evidence relied upon [included] text messages of unknown authorship, sent weeks before the incident in question, that were extracted from a phone found in a vehicle that [Appellant] operated but did not own?

Appellant’s Brief at 5.

In his first issue presented, Appellant contends the police lacked

reasonable suspicion to conduct an investigatory detention and, therefore,

the police illegally seized the items recovered from the vehicle he was

driving. Id. at 17. More specifically, Appellant “asserts that he was

subjected to an investigative detention and the trial court’s determination

that the initial interaction was a mere encounter is not supported by the

record.” Id. at 20. Appellant maintains that a reasonable person in his

circumstances would not have felt free to leave because: (1) he would have

had to “exert[] considerable effort to back the Cadillac between the two

_______________________ (Footnote Continued)

After requesting and receiving additional time to file his Rule 1925(b) statement, Appellant complied on January 11, 2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 11, 2016.

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police vehicles that were purposely positioned in a manner to hinder[] his

departure[;] (2) both officers were in full uniform, Corporal Mallery shown a

flashlight into the car, and at least one officer was positioned next to the

driver’s side door at all times; (3) Corporal Mallery did not return his license

and registration even after he confirmed Appellant had no active warrants;

and (4) despite being parked in an area of known thefts and burglaries,

Corporal Mallery did not observe Appellant engage in criminal activity. Id.

at 21-24.

When reviewing the denial of a defendant's suppression motion, we

apply the following standard of review:

[An appellate court's] 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.

Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016)

(internal citation omitted). “Moreover, appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pre-trial motion to suppress.” Commonwealth v.

Stilo, 138 A.3d 33, 35–36 (Pa. Super. 2016) (internal citation omitted).

It is well-established that there are three categories of interaction

between citizens and police officers:

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The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention[,]” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.

* * *

A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. This standard, less stringent than probable cause, is commonly known as reasonable suspicion. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In making this determination, we must give due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.

Id. at 36 (internal citations omitted).

Here, the trial court determined that the initial interaction was a mere

encounter based upon Corporal Mallery’s observation that Appellant parked

in a dark, unlit parking lot after store hours, in a high crime area, and did

not appear to be lost. See Trial Court Opinion, 2/11/2016, at 8. We agree.

When Corporal Mallery initially approached Appellant to request information,

the interaction did not require any level of suspicion. Corporal Mallery

positioned his marked police car near the right rear portion of Appellant’s

vehicle, but left room for the Cadillac to back out. N.T., 2/20/2015, at 22.

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Police did not put Appellant in a position where he was not free to leave.

Upon approach, Corporal Mallery observed, from a lawful vantage point,

three cell phones in Appellant’s lap and a “wad” of currency “in the center

console.” Id. at 22-24. Corporal Mallery made contact with Appellant and

asked what he was doing. Id. at 28. Appellant said he was waiting for a

friend, but could not offer the friend’s last name. Id. “One phone [] kept

ringing and ringing like somebody was trying to get ahold of [Appellant]

multiple times while [Corporal Mallery] was standing there interacting with

him.” Id. When asked about the currency, Appellant tried to change the

subject, was extremely nervous, and started breathing heavily. Id. at 29.

Corporal Mallery testified that based upon his training and experience, in

totality, the cellular phones, large and unorganized sums of cash, location of

the vehicle, and Appellant’s nervous and evasive behavior “indicated

possible drug activity[.]” Id. at 27-30. Thus, what began as a mere

encounter ripened into a reasonable suspicion that criminal activity was

afoot, which justified an investigative detention. Moreover, Corporal Mallery

formed the requisite reasonable suspicion before asking for vehicle

registration and before backup arrived. Hence, we reject Appellant’s

reliance on police actions occurring afterwards, i.e., the positioning of the

additional officer’s vehicle and failing to return Appellant’s license and

registration after confirming there were no active warrants. Accordingly,

the trial court properly denied suppression and Appellant’s first issue lacks

merit.

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Next, Appellant contends there was insufficient evidence to support his

convictions. Appellant’s Brief at 24. Appellant maintains that, “the primary

evidence relied upon were text messages of unknown authorship extracted

from a cell phone within a vehicle that [Appellant] drove on the night in

question but did not own.” Id. at 24-25. In sum, Appellant argues:

The trial court improperly relied upon the text message evidence. The Commonwealth’s drug expert repeatedly stated that his opinion that the controlled substance was possessed with the intent to deliver was based almost entirely on the text messages themselves. This is not a case where the Commonwealth presented an overwhelming amount of credible evidence regarding [Appellant’s] involvement in drug transactions. The Commonwealth’s case was built on evidence located throughout a vehicle that [Appellant] operated, but did not own, and Detective [David] Hank[s’] expert testimony, “based almost entirely” on unauthenticated text message[s], many of which were sent days and weeks before the incident in question.

The text messages were vital to proving each of the charges. If the authorship of the drug related text message[s] had been definitively linked to [Appellant], those messages made it more probable that [Appellant] constructively possessed the crack cocaine with the intent to deliver and that he used the cell phone to facilitate a drug transaction.

Since authorship was not established, the Commonwealth failed to prove each of the elements of the crimes beyond a reasonable doubt.

Id. at 29-30.

Our standard of review is well-established:

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

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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.

This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(internal citations and quotations omitted).

Initially, we note that Appellant argues the text messages were not

properly authenticated before being admitted into evidence. However,

Appellant failed to contemporaneously object at the time the text messages

were entered into evidence and has waived any challenge to their admission.

See Commonwealth v. Payne, 760 A.2d 400, 405 (Pa. Super. 2000)

(failure to object to the admission of subpoenas signed by defendant which

were not properly authenticated waived any claim that trial court erred in

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admitting such evidence); Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

Additionally, Appellant fails to cite any law pertaining to authentication in his

appellate brief and this lack of legal development likewise results in waiver.

See Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (“We

have repeatedly held that failure to develop an argument with citation to,

and analysis of, relevant authority waives the issue on review.”); see also

Pa.R.A.P. 2119(a). Thus, we may not reach the question of whether the text

messages at issue were properly authenticated prior to their admission.

Moreover, although Appellant purports to contest the sufficiency of the

evidence presented, he in fact contends that the trial court placed too much

reliance on the text messages. Such a challenge goes to the weight of the

evidence presented. “To properly be preserved, a weight of the evidence

claim must be raised in a motion prior to sentencing, in an oral motion at

sentencing, or a post-sentence motion.” Antidormi, 84 A.3d at 758.

Appellant has not raised or preserved a weight of the evidence claim and we

may not weigh the evidence and substitute our judgment for the fact-finder.

Furthermore, “[i]n evaluating the sufficiency of the evidence, we do

not review a diminished record.” Commonwealth v. Gray, 867 A.2d 560,

567 (Pa. Super. 2005) (citation omitted). “Rather, the law is clear that we

are required to consider all evidence that was actually received, without

consideration as to the admissibility of that evidence or whether the trial

court's evidentiary rulings are correct.” Id.

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We have reviewed the certified record, the parties’ briefs, the relevant

law, and the trial court’s opinion entered on February 11, 2016. We

conclude that the opinion meticulously, thoroughly, and accurately disposes

of Appellant’s sufficiency of the evidence claim on appeal. Therefore, we

affirm that issue on the basis of the trial court’s opinion and adopt it as our

own. Because we have adopted the trial court’s opinion, we direct the

parties to include the trial court’s opinion in all future filings relating to our

examination of the merits of this appeal, as expressed herein.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2016

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