Com. v. Jamison, A.

• Court: Superior Court of Pennsylvania
• Decided: January 8, 2025
• Docket: 1458 WDA 2023
• Status: Unpublished

Opinion

J-A22030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY MARTIN JAMISON : : Appellant : No. 1458 WDA 2023

Appeal from the Judgment of Sentence Entered November 30, 2023 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001405-2021

BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: January 8, 2025

Anthony Martin Jamison appeals from the judgment of sentence

imposed following his convictions for possession of a controlled substance with

intent to deliver (“PWID”), two counts of possession of a controlled substance,

and tampering with or fabricating physical evidence.1 Jamison challenges the

trial court’s refusal to question jurors about racial prejudice; the sufficiency of

the evidence to prove PWID; the admission of evidence from his Waze app;

and the court’s application of the sentencing guidelines. We affirm.

At Jamison’s jury trial, Detective Shane Rebel testified that, acting

undercover, he arranged by telephone to buy 11 bricks of heroin and two

grams of cocaine from Jamison. Trial Court Opinion, filed 3/14/24, at 11. When

Jamison arrived at the meeting spot – the Hampton Inn in North Huntingdon ____________________________________________

1 See 35 P.S. § 780-113(a)(30) and (a)(16), and 18 Pa.C.S.A. § 4910(1), respectively. J-A22030-24

– Detective Rebel observed him from an unmarked police vehicle. Detective

Rebel then sent a message to Jamison, asking him to meet for the exchange

at the Hampton Inn in Greensburg, instead. Id. at 12. Rebel followed Jamison

as he drove towards Greensburg, stopping at a Sheetz gas station. Once

Jamison started driving again, Detective Rebel instructed another officer,

Scott Urias, to stop Jamison. Id. at 12-13.

During the stop, Jamison ran from the police. Id. at 13. Officer Urias

testified that as Jamison ran, he threw a plastic bag. Id. at 17. After Jamison

was arrested, Officer Urias and Officer Jay Kettren retrieved the bag and found

it contained what appeared to be bricks of heroin and a bag of crack cocaine.

Id. at 17, 18. Detective Rebel determined the bag held approximately 540

stamp bags of heroin and one bag of cocaine. Id. at 14. Detective Rebel also

recovered $1,305 from Jamison’s pocket. Id. at 13.

Detective Rebel obtained a search warrant for Jamison’s vehicle and

found two cell phones.2 He then obtained a search warrant for their contents.

Detective Rebel was only able to retrieve information from one of the phones.

He gave the phone to Officer Tom Klawinski, a digital forensic examiner, to

extract the digital contents of the phone. Id. at 15. Officer Klawinski testified

that he extracted the data from the phone for Detective Rebel. Id. at 21-22;

see also N.T., Trial, 9/11/23-9/13/23, at 280-84. Detective Rebel testified

that the data showed the phone had the number which he had used to arrange

____________________________________________

2 Detective Rebel found a third cell phone which appeared inoperable.

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the controlled buy with Jamison. See Trial Ct. Op. at 15; N.T. at 334. He also

testified that the Waze navigational app on the phone showed searches for

the addresses of the Hampton Inn in North Huntingdon and the Hampton Inn

in Greensburg, just prior to the arrest. See Trial Ct. Op. at 15-16; N.T. 332-

33, 335-36. There was also location data for the Sheetz. See Trial Ct. Op. at

16; N.T. at 336. The phone also contained a picture of the key for the rental

vehicle, which Detective Rebel discovered had been rented by Jamison’s

girlfriend, and her address. See Trial Ct. Op. at 14-15; N.T. at 333-34.

The Commonwealth presented the expert testimony of a forensic

scientist, Alyshia Meyers, who tested the drugs found in Jamison’s bag. She

testified that she tested the items in four groups. First, she tested the contents

of 14 of the 488 stamp bags that displayed a “Pop Smoke” stamp. The results

of the testing, of which Meyers was 95% confident, showed that at least 80%

of those bags contained 16 grams (plus or minus 3 grams) of a mixture of

heroin, acetyl fentanyl, fentanyl, and tramadol. Trial Ct. Op. at 23-24. Second,

Meyers tested one of three unmarked stamp bags, which she concluded

contained 0.043 grams of a similar mixture. Id. at 24-25. Third, she tested

one of the 50 stamp bags with a “WS” and purple diamond stamp and

concluded they also contained a mixture of heroin, fentanyl, and tramadol.

Id. at 25. Finally, she tested a Ziploc bag that she found contained

approximately 1.95 grams of cocaine. Id. Meyers explained she uses

statistical modeling to extrapolate her estimates using a limited number of

samples. Id. at 23; N.T. at 230, 267-68.

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Detective Tony Marcocci, an expert in the field of narcotics and narcotics

investigation, also testified. N.T. at 395; Trial Ct. Op. at 26. He offered an

opinion that the heroin/fentanyl was possessed with intent to distribute it. N.T.

at 419. He discussed the factors he considers when determining whether a

person had the intent to distribute the narcotics found in the person’s

possession. Trial Ct. Op. at 26. In this case, he considered the lack of

paraphernalia, the large amount of cash Jamison had on hand, the multiple

cell phones, and the use of a rental car to be indicators that Jamison intended

to deliver the narcotics recovered by the police. Id. at 26-27 (citing N.T. at

402-03, 412, 414, 416). Detective Marcocci also found that the fact the vehicle

had been rented by a third party was indicative of drug dealing, as was the

packaging of the drugs. See N.T. at 416, 419. Detective Marcocci testified

that the weight of the narcotics recovered in this case was consistent with an

intent to deliver. Trial Ct. Op. at 27 (citing N.T. at 407, 411); see also N.T.

at 419, 441-42. He testified that if a person possessed only 20 bags of heroin,

rather than 541, he would be less likely to conclude from that fact alone that

the person had the intent to deliver the drugs. N.T. at 437-38. However,

Detective Marcocci testified that even in that circumstance, the presence of

the other factors present in this case would still lead him to conclude that the

person had an intent to deliver. Id. at 442-44.

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Following trial, the jury convicted Jamison of the above offenses.3 The

court sentenced him to an aggregate of five to 10 years’ incarceration and one

year of probation. Jamison appealed.4

Jamison raises the following issues:

I. WHETHER THE COURT ERRED BY NOT ALLOWING POTENTIAL JURORS TO BE QUESTIONED CONCERNING THEIR PREJU[D]ICE AND BIAS TOWARD A YOUNG BLACK MALE CHARGED WITH SELLING DRUGS IN AN AFFLUENT PRIMARILY WHITE COMMUNITY?

II. WHETHER THE COMMONWEALTH FAILED TO [PRESENT] SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT [JAMISON] POSSESSED 541 STAMP BAGS, EACH CONTAINING A CONTROLLED SUBSTANCE?

III. WHETHER THE COMMONWEALTH FAILED TO PRESENT [SUFFICIENT] EXPERT OPINION TESTIMONY THAT [JAMISON] POSSESSED 541 STAMP BAGS, EACH CONTAINING [A] CONTROLLED SUBSTANCE WITH THE INTENT TO DELIVER THAT CONTROLLED SUBSTANCE?

3 The court, sitting as fact-finder, acquitted Jamison of two motor vehicle violations: driving while operating privilege is suspended or revoked, and turning movements and required signals. See 75 Pa.C.S.A. §§ 1543(a), 3334(b), respectively.

4 Jamison failed to file a timely Rule 1925(b) statement. However, the court,

finding defense counsel had not received the order to file a statement, granted Jamison additional time to file his statement. Jamison filed a Rule 1925(b) statement by the new deadline. Therefore, we will not find waiver. See Commonwealth v. Gonzalez, 840 A.2d 326, 328 (Pa.Super. 2003) (en banc) (“if neither [the a]ppellant nor his counsel were served with the order directing [the a]ppellant to file a 1925 statement, then [the a]ppellant cannot be deemed to have been ‘ordered’ to file such a statement and the failure to do so cannot then be a basis for finding waiver”); Commonwealth v. Douglas, 835 A.2d 742, 745 (Pa.Super. 2003) (“waiver may be excused if an appellant can demonstrate that he/she never received proper notice of the trial court’s Pa.R.A.P. 1925(b) order”).

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IV. WHETHER THE COURT ERRED IN ALLOWING RECORDS FROM A “WAZE APP” ON THE PHONE SEIZED FROM THE CAR [JAMISON] WAS DRIVING TO BE INTRODUCED AT TRIAL WITH NO EXPERT TESTIMONY AND/OR TESTIMONY FROM AN APPROPRIATE WAZE EMPLOYEE TO ESTABLISH THE TRUTH, ACCURACY AND RELIABILITY OF THAT INFORMATION?

V. WHETHER THE COURT ERRED IN ADMITTING HEARSAY RECORDS FROM THE “WAZE APP” THAT WAS ON A PHONE SEIZED FROM THE CAR [JAMISON] WAS DRIVING?

VI. WHETHER THE COURT ERRED IN APPLYING THE FENT[A]NYL SENTENCING GUIDELINES WHEN THE COMMONWEALTH FAILED TO PRODUCE ANY EVIDENCE THAT [JAMISON] KNEW HE POSSESSED FENTANYL?

Jamison’s Br. at vii-viii (suggested answers omitted).

I. Voir Dire

Jamison first argues the court erred in denying his request to ask the

potential jurors whether his being black would make them more likely to

believe that he was involved in criminal activity. Jamison’s counsel asked the

court if he could “ask every juror, because of my client’s race, if they believe

it was more likely that he was involved in either the drug trade, drug activity,

or crime in general.” Id. at 4. Jamison asserts his case “is very racially

sensitive” because it “involves a young black male accused of drug dealing in

an affluent white community[.]” Id. at 3. He argues the court’s catchall

question, asking if there is any reason the jurors could not be fair, was not

sufficient to determine whether the jurors were racially prejudiced. In his view,

“it is fallacy to believe a juror is going to self-report that they hold a prejudice

against a young black male[.]” Id. at 4. He argues that if the court had asked

at least one direct question about race, the juror[s’] answers could potentially

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have led to follow-up questions “which allow jurors’ true feelings about race

to be determined.” Id. He cites Commonwealth v. Richardson, 473 A.2d

1361 (Pa. 1984), in support.

The court denied the request, finding Jamison’s proposed voir dire

question “would have injected race into a case without any evidence

implicating race, which may have interfered with the balance of an impartial

trial and suggested prejudicial implications.” Trial Ct. Op. at 34. It noted that

while Jamison’s counsel referenced his race in his opening and closing

statements, “none of the evidence submitted had any focus on race, other

than officers testifying that [Jamison] was a ‘black male’ for identification

purposes.” Id. The Court also found it sufficiently probed into any potential

bias by asking the jury members whether they “had any personal, moral, or

religious beliefs relating to controlled substances that would prevent them

from being a fair and impartial juror in the case,” and “whether there was any

reason they could not be a fair juror in a criminal case or in this case.” Id.

The scope of voir dire rests within the discretion of the trial court, and

we will not reverse the court’s decisions in his regard absent a palpable abuse

of discretion. Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013).

The purpose of voir dire is to aid the empaneling of a “competent, fair,

impartial, and unprejudiced jury[.]” Commonwealth v. Holt, 273 A.3d 514,

546 (Pa. 2022) (citation omitted). Voir dire questions are limited to discerning

whether a potential juror has an opinion regarding the defendant’s guilt or

innocence that is “so deeply embedded as to render that person incapable of

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accepting and applying the law as given by the court.” Commonwealth v.

Scott, 212 A.3d 1094, 1103 (Pa.Super. 2019) (citation omitted). This inquiry

must be “considered in light of the factual circumstances of a particular

criminal episode.” Holt, 273 A.3d at 546 (citation omitted).

In Richardson, the defendant was a black man charged with raping a

white woman. The trial court denied his request to question the potential

jurors on specific racial biases, including whether they believed black people

were more dishonest than white people and whether black men were more

likely to rape white women. Instead, the court asked the potential jurors

whether the racial differences between the defendant and the victim “present

such a problem to you that it could interfere with your honest appraisal of the

case and interfere with your ability to be completely fair to both the

Commonwealth and the [d]efendant?” 473 A.2d at 1362.

The Pennsylvania Supreme Court found that the trial court had properly

declined defendant’s request. It noted that while inquiring into the racial

attitudes of potential jurors might be warranted in a racially sensitive case,

“[a] criminal prosecution is not . . . rendered racially sensitive by the mere

fact that the defendant is black and the crime victim is white.” Id. at 1363

(emphasis removed). The Court found that the racial difference between the

defendant and victim were not emphasized by the trial evidence. It concluded

that if the trial court had posed the questions requested by the defense, this

“would have risked creating racial issues in a case where such issues would

not otherwise have existed,” “thereby beclouding the trial with prejudicial

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suggestions and implications.” Id. at 1364. The Court held the question the

trial court asked the potential jurors instead was “sufficiently specific and

probing to reveal prejudices which might have bearing upon the case.” Id.

Pursuant to Richardson, Jamison has not shown that the case was

racially sensitive. Under the facts of the case and the holding of Richardson,

the trial court’s decision was not an abuse of discretion. See Commonwealth

v. Wimbush, 951 A.2d 379, 383 (Pa.Super. 2008) (stating, “Absent a

demonstration of special circumstances, other than the race of a defendant,

voir dire into the racial bias of prospective jurors is not required to ensure a

defendant a fair trial”).

II. Sufficiency of the Evidence

Jamison’s next two issues are interrelated. First, he argues there was

insufficient evidence to convict him of PWID because the Commonwealth only

presented evidence that it tested a small portion of the large collection of

stamp bags it recovered from Jamison. He points out that the forensic scientist

estimated that 80% of the stamp bags contained a controlled substance. He

therefore claims that “the Commonwealth presented no evidence that 20% .

. . of the stamp bags contained a controlled substance.” Jamison’s Br. at 5.

He also notes she gave her results with a confidence of 95%, and argues that

“a 5% chance is the very definition of reasonable doubt.” Id. at 6.

Jamison then argues that because the Commonwealth only proved some

of the stamps bags contained a controlled substance, this invalidated

Detective Marcocci’s opinion that, based on the total quantity of 541 stamp

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bags, Jamison intended to deliver them. Jamison asserts that the

Commonwealth failed to present testimony that an expert could extrapolate

an intent to deliver from a lesser amount of controlled substance.

We review a sufficiency claim pursuant to the following standard:

When reviewing a challenge to the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. This standard applies equally where the Commonwealth’s evidence is circumstantial.

In conducting this analysis, we do not weigh the evidence and substitute our judgment for that of the fact-finder. Additionally, the Commonwealth's evidence need not preclude every possibility of innocence in order to prove guilt beyond a reasonable doubt. The fact-finder is free to believe all, part, or none of the evidence.

Commonwealth v. Clemens, 242 A.3d 659, 664-65 (Pa.Super. 2020)

(cleaned up).

Jamison’s first argument has no merit. The Commonwealth does not

need to provide evidence that it tested every bit of a large quantity of a

controlled substance to prove beyond reasonable doubt that the entire lot was

the same substance. An expert opinion of the total drugs possessed based on

extrapolation from testing of a subset of the evidence can be sufficient

evidence in a criminal case. Commonwealth v. Harley, 924 A.2d 1273, 1280

(Pa.Super. 2007). “It is well-settled that ‘[t]he practice of testing

representative samples of larger quantities of drugs and extrapolating

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therefrom the total narcotics content of an illegal substance is well accepted.’”

Id. (quoting Commonwealth v. Minott, 577 A.2d 928, 931 (Pa.Super.

1990)). In fact, the Commonwealth may identify a narcotic substance through

circumstantial evidence alone, without any chemical testing. Minott, 577 A.2d

at 932. Here, the Commonwealth presented sufficient evidence to establish

that all the bags they recovered from Jamison contained narcotics, based on

the results of the chemical test Meyers performed on a representative sample.

Jamison’s second argument fails as well. “[T]he intent to deliver may be

inferred from possession of a large quantity of controlled substances.”

Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa.Super. 2016) (citation

omitted). Here, Detective Marcocci testified as an expert that Jamison

possessed a large enough quantity of narcotics to support the inference that

he intended to deliver them. This was sufficient evidence to establish PWID.

Moreover, “if the quantity of the controlled substance is not dispositive

as to the intent, the court may look to other factors.” Id. These include “the

manner in which the controlled substance was packaged, the behavior of the

defendant, the presence of drug paraphernalia, . . . [the] sums of cash found

in possession of the defendant . . . [and] expert testimony.” Id. (citation

omitted).

Here, Detective Marcocci testified that even if Jamison had only

possessed 20 stamp bags containing narcotics, and not 541, the other factors

in the case would support a conclusion that Jamison had the intent to deliver

the drugs. Detective Marcocci considered the packaging of the drugs, the lack

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of drug paraphernalia, the use of a third-party rental car, the multiple cell

phones, and the large amount of cash the police recovered from Jamison. In

addition to Detective Marcocci’s expert testimony, Detective Rebel testified

that he had arranged to buy drugs from Jamison, and Jamison had arrived

with the drugs at the meeting spot, as planned. Therefore, even if we found

the Commonwealth’s evidence regarding the exact quantity of drugs to be

lacking, there was sufficient other evidence that Jamison committed PWID.

III. Waze App Evidence

Jamison’s fourth and fifth issues challenge the admissibility of the data

from the Waze navigational app that the police extracted from the phone they

found in the car Jamison was driving. Jamison first argues the court erred in

overruling his objection to authentication. See Jamison’s Br. at 8 (citing

Pa.R.E. 901). He argues the Commonwealth did not establish how the Waze

app works, whether the information is exclusive to any particular user or

account, and if it records data in real time. He further argues the

Commonwealth failed to establish that the app inputs data correctly and works

reliably. Jamison argues that the admission of the unauthenticated evidence

was reversible error because the Commonwealth offered the evidence to show

that the locations listed in the app corresponded to the places Jamison drove

preceding his arrest.

“[D]ecisions on admissibility are within the sound discretion of the trial

court and will not be overturned absent an abuse of discretion or

misapplication of law.” Commonwealth v. Jackson, 283 A.3d 814, 817

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(Pa.Super. 2022) (citation omitted). “An abuse of 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, as shown by the evidence or

the record, discretion is abused.” Id. (citation omitted).

Authentication of evidence is governed by Pennsylvania Rule of Evidence

901. To authenticate digital evidence,5 its proponent must “produce evidence

sufficient to support a finding that the item is what the proponent claims it is.”

Pa.R.E. 901(a). This may be done directly by a knowledgeable person or by

other, circumstantial evidence. Id.; see also Gregury v. Greguras, 196

A.3d 619, 633 (Pa.Super. 2018) (en banc). The Rule further states that the

author of digital information can be established by direct testimony,

identifying content, or “proof of ownership, possession, control, or access to

a device or account at the relevant time when corroborated by circumstances

indicating authorship.” Pa.R.E. 901(11). The Rule imposes a “low burden of

proof.” Jackson, 283 A.3d at 818. A prima facie case of authenticity is

sufficient for an item to be admissible. Greguras, 196 A.3d at 633-34.

The court found the Commonwealth met its burden to authenticate the

digital Waze records. Trial Ct. Op. at 37. The court recalled that Detective

Rebel testified he recovered the phone from the car, of which Jamison had

5 Under the Rule, “digital evidence,” includes “a communication, statement,

or image existing in an electronic medium. This includes emails, text messages, social media postings, and images.” Pa.R.E. 901 at comment.

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been the only occupant, and gave it to Officer Klawinski. Officer Klawinski

testified that he extracted the data and generated a report for Detective Rebel.

Detective Rebel testified that the phone’s number was the number he had

used to contact Jamison to arrange the controlled buy, and the Waze app

showed addresses for the locations where Jamison had agreed to meet

Detective Rebel, and the gas station where he had stopped in between. The

court did not abuse its discretion in holding the Commonwealth presented

prima facie evidence that the data listed in the Waze app was the result of

Jamison’s operation of the cell phone and was therefore admissible.

Jamison also argues the court erred in allowing the evidence because

he alleges it is hearsay. He argues the evidence was an out-of-court statement

that the Commonwealth offered for its truth.

Hearsay is a statement that a declarant makes outside of court and

which is offered as proof of the matter asserted. See Pa.R.E. 801(c). A

declarant is a “person” who makes a statement, and a “statement” is a

“person’s oral assertion, written assertion, or nonverbal conduct, if the person

intended it as an assertion.” Id. at 801(a), (b). As it is not asserted by a

person, electronic data that is automatically collected or generated, such as

GPS data, is not hearsay evidence. See Commonwealth v. Vance, 316 A.3d

183, 189 (Pa.Super. 2024).

The court found the Waze data was not hearsay, and we agree. First,

the Waze data showing addresses is not hearsay, as it does not consist of

statements made by a person, but of automatically generated data. Id. The

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Waze data also shows searches for addresses, which the Commonwealth

alleged were made by Jamison, and the times those searches were made.

However, the searches are not hearsay, as they are not assertions offered for

their truth. And, even if we construed them as assertions made by Jamison, a

defendant’s statements are exceptions to prohibition on hearsay. See

Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 2006); Pa.R.E.

803(25).

VI. Sentencing Guidelines

Jamison’s concluding argument is that the court erred in applying the

sentencing guidelines applicable to offenses involving fentanyl because the

Commonwealth failed to prove Jamison knew he possessed fentanyl, rather

than heroin. He claims that Detective Rebel testified that he had asked to buy

heroin and cocaine, and that fentanyl was not implicated in the case until the

Commonwealth tested the contents of some of the stamp bags. He contends

that applying the guidelines which increased his sentence, without making a

finding of criminal intent, subjects him to strict liability in violation of his

constitutional right to due process. Jamison’s Br. at 10.6

Due process requires that any fact, aside from a prior conviction, that

increases a mandatory minimum sentence or the statutory maximum for a

sentence must be submitted to the fact-finder and proven beyond a

6 Jamison’s due process claim goes to the legality of his sentence, and therefore is not waivable. See generally Commonwealth v. Prinkey, 277 A.3d 554, 562-63 (Pa. 2022).

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reasonable doubt. See Commonwealth v. Williams, 302 A.3d 117, 122

(Pa.Super. 2023) (discussing Apprendi v. New Jersey, 530 U.S. 466 (2000),

and Alleyne v. United States, 570 U.S. 99 (2013)), appeal denied, 312 A.3d

315 (Pa. 2024). However, facts that merely increase the ranges suggested by

the sentencing guidelines need not be submitted to the fact-finder and proven

beyond a reasonable doubt, as a sentencing court has discretion to make

factual findings relevant to sentencing. See id. (finding court did not abuse

its discretion in using enhanced sentencing guidelines based on weight of

fentanyl even though jury had not made finding as to weight).

Here, the jury convicted Jamison of possession of “heroin/fentanyl” with

intent to deliver. See Verdict, 9/14/23, at 1. Even assuming the jury did not

expressly find that Jamison knew he possessed fentanyl, rather than only

heroin, the court did not err in considering the guidelines ranges

corresponding to PWID with fentanyl. The court had discretion to draw its own

conclusions from the facts regarding Jamison’s level of culpability, and the

court’s conclusion did not alter the statutory minimum or maximum sentence

for the offense.

Judgment of sentence affirmed.

DATE: 01/08/2025

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