Com. v. Gaskins, S.

• Court: Superior Court of Pennsylvania
• Decided: May 13, 2020
• Docket: 2135 EDA 2017
• Status: Unpublished

Opinion

J-S16010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHEELITA GASKINS : : Appellant : No. 2135 EDA 2017

Appeal from the Judgment of Sentence May 11, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003506-2015

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.: FILED MAY 13, 2020

Appellant, Sheelita Gaskins, appeals from the Judgment of Sentence

entered after a jury convicted her of one count of Possession with Intent to

Distribute (“PWID”) (heroin), one count of PWID (cocaine), and one count of

Conspiracy to PWID. She challenges the denial of her Motion to Preclude

Evidence, and certain evidentiary rulings. We affirm.

We glean the following factual and procedural history from the trial

court’s Opinion and the certified record. On May 27, 2015, in connection with J-S16010-20

a drug investigation of Maurice Grannum,1 police officers from the Ridley

Township Police Force and the Delaware County Criminal Investigations

Division, Drug Task Force, including Detective Shawn Brydges, executed a

search warrant of Appellant and Grannum’s shared home in Colwyn. When

the officers entered a bedroom on the second floor, they discovered Appellant

sitting on the bed surrounded by 10 bundles of heroin2 and packaging

materials. In the kitchen, officers found 3 digital scales on the table, a cutting

agent for cocaine under the sink, and drug packaging materials. In the living

room, they found a shoebox with at least 50 bundles of heroin, small amounts

of cocaine and marijuana, $700 in cash, and small empty clear baggies for

packaging. In the spare bedroom, officers recovered at least 20 bundles of

heroin. In the basement, officers recovered a loaded 9 mm handgun from a

shoebox.

In all, police confiscated more than 1,000 small bags of heroin from

Appellant’s home, some stamped with unique brand names, including: “Tony

Montana,” “Captain America,” and “Popeye.” In his police report, Detective

Brydges identified 1,108 bags of heroin seized from the home.

1The investigation involved surveillance of the residence shared by Appellant and Grannum, the use of confidential informants, and controlled narcotics buys from Grannum at the residence.

2One “bundle” of heroin is comprised of 10-14 tiny baggies of the drug. N.T., 3/1/17, at 12, 149.

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The Commonwealth arrested Appellant and charged her with two counts

of PWID, and one count each of Intentionally Possessing a Controlled

Substance by a Person Not Registered, Use or Possession of Drug

Paraphernalia, and Conspiracy to PWID.3 Appellant’s first trial ended with a

hung jury.4, 5

The court scheduled Appellant’s second trial for February 28, 2017. On

February 24, 2017, Appellant filed a pre-trial Motion to Preclude Evidence.

The Motion sought preclusion of the heroin evidence because Detective

Brydges documented that he recovered 1,108 little bags of drugs from the

house and the forensic crime lab reported that it actually received 113 more

bags than the police had documented.

The court heard oral argument on the Motion just before trial on

February 28, 2017. Appellant’s attorney argued that the drug evidence should

be precluded based on the discrepancy between the police report’s count of

the bags seized and the lab’s count of the bags received. Counsel argued that

the Commonwealth could not authenticate “that the drugs they are purporting

to present at trial are the same drugs that were retrieved from the property.”

3 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18 Pa.C.S. § 903, respectively.

4 The same judge presided over Appellant’s two trials.

5 Grannum, who was also charged with numerous drug offenses, pled guilty in a separate proceeding.

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N.T., 2/28/17, at 6.6 The Commonwealth responded that the lab technician

alerted the state police to the actual number of bags she received, informed

it that Officer Brydges inaccurately counted the sealed evidence, and wrote

the correct number on the lab report. Id. at 7. The Commonwealth and

Appellant’s counsel each noted that the trial court was not required to preclude

evidence if there is a gap in the chain of custody; rather, the jury may consider

the gap in determining the weight of the evidence. See id. at 6, 8. After

stating that the determination ultimately pertained to the weight of the

evidence, the court concluded that the Commonwealth had established an

acceptable chain of custody to allow the admission of the heroin evidence at

trial. The court also noted that Appellant’s counsel would have a “fertile field”

for cross-examination. Id. at 9. The trial court denied the Motion, and the

jury trial commenced.

At trial, Detective Brydges testified generally about the investigation of

Grannum that ultimately led to the search of Appellant’s home. Detective

Brydges also testified that he (1) counted the little baggies in the bundles but

they are so small that they sometimes stick together; (2) witnessed the

sealing of the evidence bag that contained the seized heroin; and (3)

personally placed the sealed bag into the secure evidence room at the police

6 At her first trial with different counsel but the same judge, Appellant stipulated that the chain of custody she now challenges had been established. See Comm. Exh. 33.

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station. See N.T., 3/1/17, at 21-40. He also explained that the officers did

not prepare a drug inventory at the Appellant’s home due to the high number

of baggies recovered; Detective Brydges instead counted the baggies at the

police station and listed the confiscated evidence in his police report. Id. at

27. He also testified that the photograph admitted as Defense Exhibit 3

showed all of the evidence seized from Appellant’s home.

Officer Borak, the manager of the evidence storeroom in the secure

evidence room, testified that he transported the sealed evidence to and from

the Lima Crime lab, and to and from the evidence room for trial. Id. at 118-

123.

Kristin Staines, a forensic scientist with the Pennsylvania State Police

who qualified as an expert, testified that she tested the evidence in this case,

including the number of baggies received, and that the baggies containing

heroin that was tested were stamped with “Popeye,” “Tony Montana,” and

“Captain America” brand names. Id. at 136-140.

On March 1, 2017, the jury found Appellant guilty of two counts of PWID

and Conspiracy. On May 11, 2017, the court sentenced Appellant to an

aggregate term of 23 months’ Intermediate Punishment and 5 years’

probation. Appellant filed a timely Post-Sentence Motion, which the trial court

denied.

Appellant timely appealed and submitted a Pa.R.A.P. 1925(b)

Statement. The court filed a responsive Rule 1925(a) Opinion.

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Appellant raises the following issues for our review:

1. The [t]rial [c]ourt erred in denying Appellant’s pre-trial motion to preclude physical evidence.

2. The [t]rial [c]ourt erred because the evidence elicited at trial was insufficient to convict Appellant of the applicable charges.

3. The [t]rial [c]ourt erred as the trial verdict was against the weight of the evidence.

4. The [t]rial [c]ourt erred by sustaining Commonwealth objections to defense counsel’s questioning of Detective Brydges regarding the police investigation into the co-defendant preceding the execution of the search warrant.

5. The [t]rial [c]ourt erred by sustaining Commonwealth objections to defense counsel’s questions of Detective Brydges regarding conversations with the Confidential Informant, that were not hearsay.

6. The [t]rial [c]ourt erred by sustaining Commonwealth objections to defense counsel’s questions of Detective Brydges regarding the co-defendant’s involvement in the instant matter.

Appellant’s Brief at 5.7

7 Appellant set out argument in her Brief of only Issues 1, 4, 5, and 6. The Rules of Appellate Procedure state unequivocally that an appellant is to support each question with a discussion and analysis of pertinent authority. See Pa.R.A.P. 2119(a). Because Appellant set out no argument for Issues 2 and 3, we conclude she has waived these issues.

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Issue 1 – Motion to Preclude Evidence

In her first issue, Appellant contends that the trial court should have

precluded the heroin at trial because of the discrepancy in the number of small

bags recorded by Detective Brydges in his police report and the number of the

bags received by the forensic lab for testing. Appellant’s Brief at 12.8

We review evidentiary rulings under the following well-settled standard:

The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

“To constitute reversible error, an evidentiary ruling must not only be

erroneous, but also harmful or prejudicial to the complaining party.”

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation

omitted). “Physical evidence may be admitted at trial without demonstrating

to an absolute certainty the precise chain of custody; the evidence need only

8 Appellant provides a somewhat disjointed and incomplete summary of Detective Brydges’ testimony presented at both of her trials, but fails to provide citation to the notes of testimony. See Pa.R.A.P. 2116(a)(4), (c)(4), and 2117(c) (requiring citation to record). Although we could find this issue waived because of this failure, we were able to discern her argument through our review of the record. Accordingly, we decline to find this issue waived.

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establish a reasonable inference” “that the identity and condition of the

exhibits remain unimpaired until they were surrendered to the court.”

Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super. 1994);

Commonwealth v. Martin, 419 A.2d 795, 797-98 (Pa. Super. 1980) (citation

omitted). There is no requirement that the Commonwealth establish the

sanctity of its exhibits beyond all moral certainty. Commonwealth v Miller,

371 A.2d 1362, 1365 (Pa. Super. 1977). Moreover, “any gaps in the chain of

custody ... go to the weight of the evidence[.]” Commonwealth v. Dunston,

437 A.2d 1178, 1179 (Pa. 1981). “The weight of the evidence is exclusively

for the finder of fact, who is free to believe all, part, or none of the evidence,

and to assess the credibility of witnesses.” Commonwealth v. Treiber, 874

A.2d 26, 30 (Pa. 2005).

Appellant avers that the trial court should have granted her Motion to

Preclude because the Commonwealth “failed to establish that the drugs tested

by the State Police in this matter are the same drugs recovered from the

residence.” Appellants Brief at 12. In asserting that the Commonwealth failed

to meet the threshold burden as it pertained to chain of custody, she relies on

Commonwealth v. Hess, 666 A.2d 705 (Pa. Super. 1995), a case that is

easily distinguished from the instant case. Appellant’s Brief at 10-11.

In Hess, following a vehicle accident, the driver/appellant underwent

two separate blood alcohol tests. At trial, the Commonwealth presented

conflicting testimony from three different police officers and the forensic

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scientist regarding the second blood draw, specifically how many vials were

drawn, how many vials were transported to the lab, and how many vials were

tested. The trial court admitted the evidence of both the first and second

blood draws. On appeal, this Court concluded that the discrepancy in the

number of vials in the second blood draw “calls into question the identity of

the blood tested” so “the evidence regarding the second blood test was

unreliable and should have been excluded.” Id. at 709. The Court also

concluded, however, that the error was harmless because the crime was

established with, inter alia, the results of the first blood draw.

Here, notwithstanding the discrepancy in the number of baggies seized,

there was other evidence to establish that the baggies of heroin tested were

seized from Appellant’s home. The admitted evidence established that the

baggies found at Appellant’s home and those tested by the lab were stamped

with the branding names “Popeye,” “Captain America,” and “Tony Montana.”

See N.T., 3/1/17, at 138-140 (Kristin Staines’s testimony); Exh. C-8 (lab

inventory report); id. at 21-22, 37-38 (Brydges’s testimony re: “Popeye”).

Testimony also established that Brydges observed his partner, Detective

Scanlon, seal the evidence after Brydges counted the baggies at the police

station, and the evidence remained sealed during transport.

Moreover, the evidence found credible by the jury was that Detective

Brydges inaccurately counted the small baggies prior to the sealing of the

evidence container. Detective Brydges explained the reason for his error,

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emphasizing the small size of each baggie and the difficulty in separating such

tiny bags when they are stored in bundles. He also testified that he never

added any bags to the lot before the evidence was sealed. See N.T. at 30-

33. In addition, the jury, as factfinder, saw photos of the actual evidence to

corroborate Detective Brydges’s statement. See Def. Exh. 3. Finally,

Detective Borak and the forensic scientist each provided corroborating

testimony that they observed the evidence sealed at all times. Id. at 123-24.

In sum, as demonstrated by the verdict, the jury found Detective

Brydges’ explanation for the inaccurate count credible, indicating that it gave

no weight to the discrepancy in the number of bags in its determination that

the Commonwealth proved that the evidence seized and tested from

Appellant’s home was heroin. Accordingly, we conclude Appellant’s challenge

to the admission of the evidence based on a chain of custody issue warrants

no relief.

Issues 4, 5, and 6 – Trial Court’s sustaining Commonwealth’s objections to certain testimony

Appellant next asserts that the trial court erred in sustaining certain

Commonwealth objections to evidence. Specifically, Appellant asserts that

she should have been able to question Detective Brydges regarding his

interactions with Maurice Grannum and the confidential informant involved in

the investigation that led to the search warrant of Appellant’s house.

Appellant’s Brief at 12, 14-15.

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Appellant has failed to comply with our rules of appellate procedure. For

instance, Appellant provides no citation to the notes of testimony. In addition,

Appellant makes summary pronouncements of law without citing legal

authority to support them. See, e.g., id. at 14 (“by law all evidence in the

one matter is admissible at the trial of the other,” and “the mere fact that Mr.

Grannum pled guilty prior to trial in no way places an evidentiary prohibition

on the admissible evidence of the other.”). See also Pa.R.A.P. 2119(a)

(requiring citation to authority deemed pertinent to the issue raised). 9 As a

result of Appellant’s failure to comply with the rules of appellate procedure,

we are unable to provide meaningful review. 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); Commonwealth v. Murchinson,

899 A.2d 1159, 1162 (Pa. Super. 2006) (deeming appellant’s claims waived

under Pa.R.A.P. 2119(a) because, inter alia, he did not develop meaningful

argument with specific references to relevant case law and to the record to

support his claims); see also Commonwealth v. Heilman, 867 A.2d 542,

546 (Pa. Super. 2005) (recognizing that the failure to provide “such discussion

9 In an attempt to argue why the court erroneously precluded the evidence, Appellant cites cases defining PWID, conspiracy, joinder, and mere presence at a crime scene. See Appellant’s Brief at 13-14.

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and citation of authorities as are deemed pertinent” may result in waiver);

Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004) (declining

to review appellant’s claim where there was limited explanation and

development of the argument). Accordingly, Appellant has waived her

remaining issues.

In conclusion, the trial court did not abuse its discretion when it denied

Appellant’s Motion to Preclude Evidence. Further, we conclude that Appellant’s

remaining issues are waived. We, thus, affirm the Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/13/2020

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