Com. v. Fowler, J.

• Court: Superior Court of Pennsylvania
• Decided: June 15, 2017
• Docket: Com. v. Fowler, J. No. 1157 WDA 2016
• Status: Unpublished

Opinion

J-S31018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES HOWARD FOWLER, : : Appellant : No. 1157 WDA 2016

Appeal from the Judgment of Sentence July 22, 2016 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000458-2015, CP-42-CR-0000459-2015

BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JUNE 15, 2017

Appellant, James Howard Fowler, appeals from the Judgment of

Sentence entered in the McKean County Court of Common Pleas on July 22,

2016, following his convictions for numerous drug-related offenses. Because

Appellant failed to preserve for review or develop properly the issues he

raises before this Court, we conclude Appellant waived his arguments. We,

therefore, affirm.

In the spring of 2015, Appellant made two separate cocaine sales to

Michelle King (“King”), then acting as a confidential informant for the

McKean County Drug Task Force. A body camera hidden on King recorded

the second cocaine sale. Minutes after the second sale was complete,

members of the McKean County Drug Task Force pulled over the vehicle that

Appellant and King were traveling in, and arrested Appellant. Officers J-S31018-17

recovered the pre-recorded buy money from Appellant’s person. During a

subsequent search of Appellant’s residence, officers found, among other

items, a scale, baggies, a ledger of prior drug transactions, and over 100

grams of cocaine.

Appellant was charged with four counts of Possession with the Intent

to Deliver, five counts of Possession of a Controlled Substance, two counts of

Criminal Use of a Communication Facility, and two counts of Conspiracy to

Commit Possession with the Intent to Deliver.1

Appellant waived his preliminary hearing and filed a suppression

motion alleging that the search warrant authorizing the search of Appellant’s

residence was not supported by probable cause. The trial court denied the

motion.

Appellant elected to proceed to a jury trial. King testified at trial, as

did various members of the McKean County Drug Task Force. The

Commonwealth showed the jury a 40-minute video and audio recording of

the second cocaine sale, recorded on a body camera worn by King.

At trial, Appellant admitted to selling cocaine to King on both occasions

charged by the Commonwealth, and to possessing most of the drugs and

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1 35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); 18 Pa.C.S. § 7512; and 18 Pa.C.S. § 903, respectively.

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other paraphernalia recovered from his residence.2 Rather than deny the

sales, Appellant sought to portray King as a trusted friend who had betrayed

him and entrapped him to avoid prosecution for her own drug offenses.

Appellant introduced evidence suggesting that he was a drug addict who

only possessed cocaine for personal use, and that he only sold cocaine to

King on two occasions after she hounded him relentlessly.3

After a two day trial, the jury convicted Appellant on all counts. The

trial court sentenced Appellant to an aggregate term of 9½ to 19 years of

imprisonment.

Appellant timely appealed, and the trial court ordered Appellant to file

a Pa.R.A.P. 1925(b) Statement. Appellant complied, and the trial court filed

a responsive Pa.R.A.P. 1925(a) Opinion.

In his Brief to this Court, Appellant raises the following issues for our

review:

1. Is there sufficient evidence to support the jury’s finding of fact that Appellant was not entrapped by Michelle King and the McKean County Drug Task Force?

2. Did the court err in finding that Appellant’s motion to suppress was properly denied? ____________________________________________

2 Of the more than 100 grams of cocaine recovered from his residence, Appellant disavowed knowledge of 82.27 grams of cocaine recovered inside a shopping bag and suggested someone must have planted it there. 3 King vehemently denied these claims, testifying that Appellant had been a willing participant in the sales and had sold cocaine to her “hundreds” of times in the past.

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3. Did the trial court err in permitting evidence of prior drug use between Appellant and [King] in violation of Pa.R.E. 404(b)?

Appellant’s Brief at 6.

Before we reach the merits of the issues raised on appeal, we

determine whether Appellant properly preserved them for review.

Preservation of Claims Generally

Appellant was required to preserve his claims for appellate review at

three distinct junctures: at trial, in his Rule 1925(b) Statement of Errors,

and in his Brief to this Court. Our Pennsylvania Rules of Appellate Procedure

and our case law lay out the well-established requirements for preserving a

claim for appellate review.

“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). This requirement bars an

appellant from raising “a new and different theory of relief” for the first time

on appeal. Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super.

1983).

Similarly, our Supreme Court has made it clear that “[a]ny issues not

raised in a [Rule] 1925(b) statement will be deemed waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation and

quotation omitted). We will also deem a claim waived if the Rule 1925(b)

statement is so vague that it fails to provide adequate guidance to the trial

court regarding the issue on appeal. See Pa.R.A.P. 1925(b)(4)(ii) (“The

[1925(b)] Statement shall concisely identify each ruling or error that the

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appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge”). A Rule 1925(b) Statement “which is too vague to

allow the court to identify the issues raised on appeal is the functional

equivalent of no [Rule 1925(b)] Statement at all.” Lineberger v. Wyeth,

894 A.2d 141, 148 (Pa. Super. 2006).

Finally, this Court will address only those issues properly presented

and developed in an appellant’s brief as required by our rules of appellate

procedure, Pa.R.A.P. 2101-2119. “Appellate arguments which fail to adhere

to these rules may be considered waived, and arguments which are not

appropriately developed are waived.” Coulter v. Ramsden, 94 A.3d 1080,

1088, appeal denied, 110 A.3d 998 (Pa. 2014) Thus, issues raised in a

Brief’s Statement of Questions Involved but not sufficiently developed in the

Brief’s Argument section will be deemed waived. Harkins v. Calumet

Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992).

With these precepts in mind, we conclude that each of Appellant’s

issues are waived for the following reasons.

Sufficiency of Evidence

In his Pa.R.A.P. 1925(b) Statement and in his Statement of Questions

Raised on Appeal, Appellant purports to raise a challenge to the sufficiency

of the evidence. See Pa.R.A.P. 1925(b) Statement (“The evidence was

insufficient to convict the defendant of all counts of possession with intent to

deliver.”); Appellant’s Brief at 5. However, the corresponding argument

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portion of Appellant’s Brief is devoid of any argument regarding the

sufficiency of the Commonwealth’s evidence. Instead, Appellant asks this

Court to find that King’s conduct constitutes “entrapment as a matter of law”

because she “took advantage of her personal relationship with Appellant and

repeatedly harassed him until she convinced him to sell her cocaine[.]”

Appellant’s Brief at 18.

Appellant has failed to preserve this claim. As discussed supra,

Appellant was required to preserve issues for our review by including them

in his Rule 1925(b) Statement “with sufficient detail to identify all pertinent

issues for the [trial] judge.” Pa.R.A.P. 1925(b)(4)(ii). Appellant’s Rule

1925(b) Statement made no mention of his entrapment defense, and did not

put forth his current claim that King’s conduct constitutes entrapment as a

matter of law.4 Appellant’s entrapment claim is, therefore, waived.

Moreover, to the extent that Appellant did preserve a challenge to the

sufficiency of the Commonwealth’s evidence in his Rule 1925(b) Statement,

he waived it by failing to address sufficiency of the evidence in the argument

portion of his Brief.

4 Unsurprisingly, the trial court’s Pa.R.A.P. 1925(a) Opinion addresses the sufficiency of the Commonwealth’s evidence and does not discuss or analyze Appellant’s entrapment claim. See Rule 1925(a) Opinion, dated 1/13/17, at 1-4.

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Motion to Suppress

Appellant’s second claim also raises his entrapment defense, but in the

context of whether the search warrant was constitutionally invalid.

In his Rule 1925(b) Statement Appellant averred that “[t]he trial court

erred when it failed to suppress evidence based on a search warrant which

lacked probable cause.” Pa.R.A.P. 1925(b) Statement. In his Brief to this

Court, however, Appellant does not argue that the warrant lacked probable

cause. Instead, he avers that the trial court erred by denying his Motion to

Suppress because “the search warrant that was executed on Appellant’s

house was based on probable cause that was gained solely through the

entrapment of Appellant.” Appellant’s Brief at 20-21. He asks this Court to

review the “circumstances behind the way in which probable cause was

gained,” and to extend the exclusionary rule to invalidate warrants obtained

because of entrapment. Id. at 19-21.

Once again, Appellant failed to preserve the claim in his Brief by

inadequately identifying it in his Rule 1925(b) Statement, and he waived the

claim identified in his Rule 1925(b) Statement by failing to address it in his

Brief.

In addition, Appellant failed to preserve his bad faith/entrapment claim

by raising it properly before the suppression court. The filing of a motion to

suppress, generally, is insufficient to preserve any and all challenges to the

validity of a search warrant. Instead, each specific challenge to a search

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warrant must be presented to the suppression court in order to preserve it

for our review. See Commonwealth v. Glass, 718 A.2d 804, 807 (Pa.

Super. 1998) (finding appellant failed to preserve his claim that the

warrant’s affidavit of probable cause was defective because his motion to

suppress was limited to arguing the constitutionality of anticipatory search

warrants). See also Commonwealth v. Menginie, 458 A.2d 966, 969

(Pa. Super. 1983) (finding waiver of a claim that a search warrant was

invalid due to alleged misstatements of fact supporting probable cause

where the appellant failed to apprise the suppression court of the specific

factual errors contained in the warrant).

In the instant case, Appellant filed a Motion to Suppress Evidence

arguing five grounds to suppress the evidence in this case, none of which

pertain to the issue he now raises.5 Nowhere in the Suppression Motion, or

at the suppression court hearing did Appellant raise the entrapment defense

he now advances on appeal. Because Appellant has failed to preserve this

issue at all relevant stages of the proceedings, it is waived.

5 In his Motion to Suppress, Appellant argued that: (1) the search warrant lacked probable cause because the reliability of King was not demonstrated; (2) the affidavit did not establish a probability that drugs were in the residence; (3) the warrant was overbroad; (4) “[t]he warrant was anticipatory and was executed without reliable confirmation that the condition precedent (completion of the sale) had occurred; and (5) Appellant’s arrest was not supported by probable cause because the Commonwealth failed to establish King’s reliability. Omnibus Pretrial Motion, filed 1/28/16, at 3.

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Prior Drug Use

Finally, Appellant avers that the Commonwealth improperly introduced

“evidence of [Appellant’s] past drug abuse to show his propensity to also sell

cocaine[.]” Appellant’s Brief at 23. This issue is also waived.

Appellant fails to make even a single reference to the record in this

portion of his argument, or to give any detailed indication of what improper

evidence the Commonwealth introduced. Appellant’s trial spanned two days

and nearly 600 pages of transcript, and his failure to direct this Court to the

relevant portions of the record provides grounds to find this claim waived.

See Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003)

(noting that, where an Appellant’s argument rests on evidence in the record,

he must make appropriate references to the record in his argument to

sufficiently develop and preserve his argument for review).

Moreover, our review of the record reveals that Appellant himself

sought the introduction of the evidence to which he now objects. “Generally

speaking, a party cannot assert error in the admission of evidence where he,

himself, introduced the evidence[.]” Commonwealth v. Heaton, 472 A.2d

1068, 1070 (Pa. 1984) (citation omitted).

For instance, in his opening statement, Appellant’s counsel argued that

Appellant was “an addict,” and that Appellant and King “would party

together” using “drugs[.]” N.T., 6/6/16, at 114-15. During his cross-

examination of King, Appellant’s counsel asked whether she and Appellant

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would “party” together, and elicited the following testimony from King about

their historical personal use of cocaine:

[Appellant’s Counsel]: In your time -- in the time that you’ve known [Appellant], you’ve known him to be someone who is addicted to cocaine; is he not?

[King]: I mean, I -- I couldn’t -- I'm not a doctor, so, I mean --

[Appellant’s Counsel]: Right?

[King]: I’m not a doctor. I couldn’t know that.

[Appellant’s Counsel]: You’ve seen him do a lot of cocaine, have you not, in your presence?

[King]: Yes.

[Appellant’s Counsel]: And you’ve done a lot of cocaine in his presence, correct?

[King]: Yep.

N.T., 6/7/16, at 52, 79. On redirect, the Commonwealth elicited testimony

from King that she had historically purchased drugs from Appellant.

Appellant’s counsel failed to object to the testimony as irrelevant or unfairly

prejudicial.6 Id. at 94-97.

Finally, when Appellant testified in his own defense, he repeatedly

volunteered that he and King “would do cocaine and drink” together and that

they “did a lot of cocaine.” Id. at 191. See also id. at 195 (“We all did

6 On two occasions, Appellant’s counsel objected on the grounds that King’s answer called for speculation. The trial court sustained both objections. N.T., 6/7/16, at 96, 97.

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cocaine, and we drank, and we smoked weed[.]”); 200-08 (admitting, on

direct, to “years of cocaine usage” and addiction).

A key element of Appellant’s defense at trial, and even now on appeal,

is his averment that he possessed the cocaine for personal use to fuel his

cocaine addiction. See id. at 258-60 (Appellant’s counsel arguing in closing

argument that “cocaine gets him interested because he’s got a problem with

it” and that the cocaine recovered from Appellant was for personal use);

Appellant’s Brief at 16 (stating that “[Appellant] was not a drug dealer, but

rather a drug addict.”). To support this defense, Appellant chose to present

evidence of his prior drug use, and not to object when the Commonwealth

later introduced similar evidence in response. We, therefore, conclude that

his newfound objection to the introduction of this evidence is waived.

Heaton, supra at 1070; Pa.R.A.P. 302(a).

Having found that Appellant failed to preserve any of the issues he

presents to this Court, we affirm his Judgment of Sentence.

Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/15/2017

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