Com. v. Hart, N.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2014
• Docket: 1007 EDA 2013
• Status: Unpublished

Opinion

J.S36036/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : NATHANIEL HART, : : Appellant : No. 1007 EDA 2013

Appeal from the Judgment of Sentence March 7, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0009045-2010

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 11, 2014

Appellant, Nathaniel Hart, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and his conviction for possession with intent to deliver a controlled 1 Appellant contends the court erred in denying his

motion in limine to preclude the testimony of Detective Barbara Weldon,

challenges the sufficiency of the evidence, and argues the court erred in

denying his motions for acquittal and mistrial. We affirm. 2

* Former Justice specially assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). 2 We note that the Commonwealth did not file a brief in the case sub judice. J. S36036/14

The facts of this case, as summarized by the trial court are as follows:

At trial, the Commonwealth presented testimony from Detective [James] Owens, Lieutenant [Charles] Jackson, Detective Weldon, and Police Officer [Kevin] Keys while [Appellant] presented testimony from Stacey Hammond. . ..

5217 West Clarkson Avenue is a two-story row house located in Northwest Philadelphia. At about 6:00 a.m. on May 28, 2010, approximately 18 to 22 Philadelphia Police Officers went to this location to execute an arrest warrant for [Appellant]. Police knocked and announced their presence; no one responded. They subsequently battered down the front door. Approximately ten officers entered the house while the other officers remained outside and secured the perimeter of the property.

The officers who entered the living room immediately recognized the smell of marijuana permeating the air. The officers divided into two search teams: one team scanned the main floor while the other team ascended the stairs to the second floor.

The main floor consisted of a living room, dining room, and kitchen. The rooms were empty except for a bag of fertilizer in the dining room closet. The officers quickly cleared the main floor and proceeded down a flight of stairs into the basement. Similar to the main floor, the basement was devoid of any furniture; however, in the basement, police found a 12-gram bag of cultivated marijuana, mail addressed to [Appellant], a magazine

they located [Appellant], sleeping and undressed. Before officers allowed [Appellant] to dress, they swept his pants for weapons. In one pocket, police found 31 $100 bills, five $50 bills, 99 $20 bills, and one $10 bill, amounting to $5,340. Once dressed, [Appellant] was taken into custody.

-2- J. S36036/14

Meanwhile, the other team of officers simultaneously searched the second floor of 5217 West Clarkson Avenue. The second floor had three bedrooms; two were functioning as an urban marijuana farm. In all, these two bedrooms contained 58 plants in various stages of growth as well as heat lamps, thermometers, irrigation and ventilation systems, and other paraphernalia used to grow and cultivate marijuana. Although plants were absent from the back bedroom, this room contained equipment similar to that found in the other two rooms.

After securing a search warrant, Philadelphia Police confiscated the 58 plants and the items used to aid in their cultivation.

Trial Ct. Op., 11/18/13, at 2-3 (references to the record omitted).

Following the jury verdict of guilty of PWID, Appellant was sentenced

filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal and the trial court filed a responsive opinion.

Appellant raises the following issues for our review:

in limine to preclude the testimony of Detective [Barbara] Weldon, as this testimony consisted of inculpatory evidence that was not disclosed until the eve of trial?

2. Was the evidence was (sic) insufficient to establish that Appellant manufactured, delivered, or possessed with intent to manufacture or deliver a controlled substance, where the evidence presented at trial failed to establish that Appellant was in constructive possession of the marijuana at the home where he was sleeping?

acquittal, as the evidence presented at trial at the close of ppellant

-3- J. S36036/14

constructively possessed the marijuana discovered at the home where Appellant was sleeping?

motion for mistrial, after detective Weldon testified that she had obtained information for the arrest of Appellant

that Appellant had engaged in prior criminal activity.

-3.

First, Appellant avers that the trial court erred in denying his motion in

limine to preclude the testimony of Detective Weldon because it consisted of

inculpatory evidence that was not disclosed until the eve of trial, viz., the

-written note memorializing her prior observation of

Appellant at the property on May 19, 2010. Id. at 8-9. Appellant contends

that because he was not made aware until the eve of trial of Detective

-person identification of him accessing the Clarkson Street

property with a key on May 18th and May 19th, and the circumstances

surrounding the identification, he was unable to formulate an effective cross-

examination or investigate a possible alibi defense. Id. at 10, 12. Appellant

argues this omission constituted a violation of Brady v. Maryland, 373 U.S.

83 (1963).

When reviewing the denial of a motion in limine, we

motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to trial, which is similar to a ruling on a motion to suppress evidence, [therefore] our standard of review . . . is the same as that of a motion

the sound discretion of the trial court, and our review is for an abuse of discretion.

-4- J. S36036/14

Commonwealth v. Rosen, 42 A.3d 988, 993 (Pa. 2012) (citations

omitted).

After careful review of the record, including the trial testimony, the

See Trial Ct. Op. at 4-9 (holding late disclosure of note did not constitute

exculpatory evidence nor was it material evidence that would have changed

verdict).

are related. Appellant contends the evidence was insufficient to establish

that he was in constructive possession of the marijuana discovered at the

ef at 13.

Id. at 23. Appellant concludes

that because the evidence was insufficient, the trial court erred in denying

his motion for judgment of acquittal. Id. at 34.

Our standard of review of a sufficiency of the evidence challenge is to

determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering all the evidence admitted at trial, and drawing all reasonable inferences therefrom in favor of the Commonwealth as the verdict-winner. The trier of fact bears the responsibility of assessing the credibility of the

-5- J. S36036/14

witnesses and weighing the evidence presented. In doing so, the trier of fact is free to believe all, part, or none of the evidence.

The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012), (citation

omitted), appeal denied, 63 A.3d 1243 (Pa. 2013).

Section 780-113(a)(30) provides:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

* * *

(30) Except as authorized by this act, the 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.

35 P.S. § 780-113(a)(30).

In Brown, this Court opined:

Because [the defendant] was not found with contraband on his person, the Commonwealth was required to establish that [the defendant] had constructive possession of the seized items to support his convictions.

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We

-6- J. S36036/14

o control the contraband

application, we have held that constructive possession may be established by the totality of the circumstances.

Brown, 48 A.3d at 430 (citations omitted).

of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only

in cases in which the Commonwealth has failed to carry its burden regarding

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super.

2013) (citation omitted), appeal denied, 93 A.3d 462 (Pa. 2014).

Instantly, as in Brown

person. Therefore, the Commonwealth had to establish that he had

constructive possession of it. See Brown, 48 A.3d at 430.

The trial court opined:

Here, [Appellant] insists that he is the victim; he was simply in the wrong place at the wrong time. To support his theory, [Appellant] presented evidence that in May 2010, he resided at 257 West Zeralda Street with his girlfriend and her two children. On May 27, 2010, after a late-night argument, he gathered some personal items, including $5,000 and important mail documents, and left

West Clarkson Avenue. When one considers the evidence as a whole, as the law requires, the idea that [Appellant] was merely an overnight guest at 5217 West Clarkson Avenue is not credible.

on May 28, 2010 was not coincidental. Nine days earlier, on May 19, 2010, police confirmed that [Appellant] had

-7- J. S36036/14

free, unfettered access to this property. On that date, Detective Weldon observed [Appellant] exit 5217 West Clarkson Avenue at 1:34 p.m. and lock the front door with

Clarkson Avenue indicated that he had the power to control the narcotics. To argue to the contrary simply defies logic. Thus, the issue is whether [Appellant] had the intent to control the contraband. The evidence shows that he did.

In addition to the 58 plants found inside the property, evidence supporting the fact finders[ ] determination that [Appelllant] had conscious dominion over the marijuana includes, but is not limited to the 31 $100 bills, five $10 bills, and 99 $20 bills amounting to more than $5,000; a 12-gram bag of cultivated marijuana; and although it

mail. The cultivated marijuana, paired with the large collection of currency, strongly indicate that [Appellant] engaged in street dr

5217 West Clarkson Avenue.

Trial Ct. Op. at 11-

determinations and discern no error. See Brown, 48 A.3d at 430.

unavailing, his claim that the court erred in denying his motion for acquittal

is without merit. See Graham, 81 A.3d at 142.

Lastly, Appellant contends the trial court erred in denying his motion

engaged in prior criminal act

-8- J. S36036/14

Id.

hat

at 40.

Appellant claims the following testimony elicited from Detective

Weldon by the Commonwealth was grounds for a mistrial.

[The Commonwealth]: Detective, those docume been handed, do you recognize those?

A: Yes, I do.

Q: What are those documents?

A: The first one is an affidavit of probable cause and the second is a warrant arrest.

Q: And on those documents there, is the name of [Appellant], correct?

A:

five addresses on there?

Q: One of those addresses, Detective, is 5217 West Clarkson Street?

Q: Detective, c referenced on the warrant, in the affidavit?

A: During this time, when we do an affidavit of probable cause these other addresses, the last four are the

-9- J. S36036/14

[Counsel for Appellant]: Objection, Judge. Can we see you at sidebar, please?

The Court: Yes.

(Whereupon, a sidebar discussion was held off the record)

The Court: The jury will disregard the last answer to that last question, and I would direct the Commonwealth to rephrase that question.

N.T. at 114-15.

already aware that there was a non-

involvement with the criminal justice system had already been established .

Id. at 154-55.

It is well- of a motion for a mistrial is limited to determining whether

discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . .

dent upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from

necessary where cautionary instructions are adequate to overcome prejudice.

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (citations

In Commonwealth v. Hudson, 955 A.2d 1031 (Pa. Super. 2008), the

defendant filed a motion in limine to exclude any reference to his prior

- 10 - J. S36036/14

convictions, which the trial court granted. Id. at 1034. The defendant

contended the trial court should have declared a mistrial after a witness for

the Commonwealth testified that he thought the defendant was in town to

see his parole or probation officer. Id. This Court opined:

Evidence of prior crimes or bad acts may not be

character or proclivities. This rule is violated where evidence presented to the jury either expressly, or by reasonable implication, indicates that the defendant has engaged in other criminal activity. However, mere passing reference to prior criminal activity is insufficient to establish improper prejudice by itself. The inquiry into whether prejudice has accrued is necessarily a fact specific one.

If evidence of prior criminal activity is inadvertently presented to the jury, the trial court may cure the improper prejudice with an appropriate cautionary instruction to the jury.

Id. (citations omitted).

s that the jury will follow the instructions of the

Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006)

(citation omitted). Instantly, after Detective Weldon uttered the word

e

instruction. See Hudson, 955 A.2d at 1034. The jury is presumed to follow

See Spotz, 896 A.2d at 1224.

rest warrant. Detective

- 11 - J. S36036/14

multiple addresses appearing on it as follows:

A: This is a copy of the warrant of arrest for [Appellant].

Q: And, Detective, to be clear, there is more than one address on that warrant, correct?

Q: But one of those addresses is 5217 West Clarkson Street?

primary address on the warrant.

Id. at 33-34. Appellant did not raise an objection to the testimony.

Ct. Op. at 14. We agree. The mere passing reference by Detective Weldon

was insufficient to establish prejudice warranting a mistrial. See Hudson,

955 A.2d at 1034. We discern no abuse of discretion by the trial court in

denying the motion for a mistrial. See Chamberlain, 30 A.3d at 422.

Judgment of sentence affirmed.

- 12 - J. S36036/14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2014

- 13 -