Com. v. Parks, E.

• Court: Superior Court of Pennsylvania
• Decided: June 1, 2016
• Docket: 866 WDA 2015
• Status: Unpublished

Opinion

J. S08016/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ERIK WADE PARKS, : : Appellant : No. 866 WDA 2015

Appeal from the Judgment of Sentence May 13, 2015 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000582-2014

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED JUNE 1, 2016

Appellant, Erik Wade Parks, appeals from the Judgment of Sentence

entered by the Fayette County Court of Common Pleas following his

convictions by a jury of Possession of a Controlled Substance With Intent to

Deliver (“PWID”), Simple Possession, Possession of Drug Paraphernalia, and

Endangering the Welfare of Children (“EWOC”).1 He challenges the trial

court’s denial of his suppression motion. After careful review, we affirm.

On February 5, 2014, and February 11, 2014, a confidential informant

purchased controlled substances from Christy Lynn Price at the residence

located at 50 Lawton Avenue in Uniontown. Working with Agent Ronald

Sepic of Pennsylvania’s Organized Crime and Drug Enforcement Task Force

1 35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); 35 P.S. § 780- 113(a)(32); and 18 Pa.C.S. § 4304(a)(1), respectively. J. S08016/16

(“Task Force”), Uniontown City Police Officer Frederick G. Kampert prepared

a search warrant application for the residence. In his affidavit of probable

cause, he named only Christy Lynn Price as the owner or possessor of the

property and the person to be searched. The search warrant also provided

for the search of the entire premises.

On February 12, 2014, Officer Kampert, together with members of the

Uniontown City Police and the Task Force, executed the search warrant at 50

Lawton Avenue, Apartment 3, in Uniontown. Appellant, Price, and their

seven-month-old daughter were present at the time of the search. Officers

searched Appellant’s person and recovered two cell phones.

In the residence, the officers found approximately 15 grams of heroin

in a large plastic container; approximately 30 grams of marijuana; a 12-

gauge pump shotgun; a magazine for a nine-millimeter handgun and seven

live rounds of ammunition. They also found three additional cell phones,

four digital scales, one with some kind of residue, a cutting agent, several

glassine stamp baggies, and a metal spoon with white residue. In addition,

officers recovered Appellant’s Veteran of Foreign Wars identification card, a

man’s suit jacket with six Suboxone strips in the pocket, and a “whizzinator”

with electric heating pad.2

2 A “whizzinator” is a device that looks like a penis and is used to dispense clean urine when providing a urine sample under supervision.

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They also found a bill addressed to Appellant at 50 Lawton Avenue,

Uniontown, PA, and a green certified return mail receipt card dated June 6,

2012, addressed to Appellant at 50 Lawton Avenue and signed by Appellant.

See Trial Court Opinion, dated 8/17/15, at 2, 4-5 (citing N.T. Trial, 4/7/15,

at 58-59, 93, 121).

Appellant and Price were arrested and charged with PWID and EWOC.

Appellant filed a Motion to Suppress the evidence, contending that the

search warrant did not cover him or his separate property. After a hearing,

Judge Joseph M. George, Jr. summarily concluded that the search “was

reasonable and justified by probable cause” after applying the “four corners”

test. Trial Court Opinion, dated 3/13/15, at 3. The court also concluded

that the totality of the circumstances supported the search of Appellant’s

person.

Agent Ronald Sepic testified as an expert in the field of narcotics

investigations. At trial, he testified as to the evidence supporting his

conclusion that Appellant was dealing drugs, including the shotgun, the

amount and weight of heroin, the cutting agent, and the paraphernalia

associated with a drug dealing operation. He also stated the five cell

phones, including the two cell phones found on Appellant’s person, were “not

included in [his] opinion on this possession with intent to deliver.” N.T.

Trial, 4/7/15, at 115.

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Agent Sepic testified that he included the residence as the place to be

searched and Price’s person to be searched because of the Confidential

Informant’s (“CI”) buys from the residence. N.T. Trial, 4/7/15, at 121.

Agent Sepic did not include all persons present, even though he stated he

would search the residence “regardless of who was there.” Id.

On April 8, 2015, a jury found Appellant guilty of PWID, Simple

Possession, Possession of Drug Paraphernalia, and EWOC. On May 13,

2015, the Honorable Linda R. Cordaro sentenced Appellant to a total of two

to four years’ incarceration.3 Appellant filed a timely Notice of Appeal on

May 28, 2015.

Appellant raises three issues on appeal:

1. Whether the court erred by finding that the search of [Appellant]’s person and his personal property was supported by probable cause when the search warrant specifically named Christy Price as the target of the investigation and her residence as the place to be searched?

2. Whether the court erred in determining that a shotgun found at Christy Price’s residence was relevant to [Appellant]’s charges, which focused on the delivery of narcotics?

3. Whether the court erred in allowing Agent Ronald Sepic to testify as an expert witness when the Commonwealth failed to notify the defense that Agent Sepic would testify as an expert witness and failed to provide to the defense the contents of his testimony prior to trial?

3 The trial court sentenced Appellant to two to four years’ incarceration for the PWID conviction. The trial court imposed a concurrent sentence of one to two years’ incarceration for the EWOC conviction. The trial court imposed a finding of guilt without further penalty for the remaining convictions.

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Appellant’s Brief at 3 (capitalization omitted).

When reviewing the denial of a suppression motion, we are limited to

determining whether the record supports the suppression court’s factual

findings and, assuming there is support in the record, we are bound by those

facts and may reverse only if the legal conclusions drawn from those facts

are erroneous. Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

Appellant first contends that the trial court erred in failing to suppress

the evidence obtained pursuant to the search warrant because the affidavit

of probable cause and the search warrant mentioned only “Christy Price as

the target of the investigation[.]” Appellant’s Brief at 8. Appellant

challenges the trial court’s determination that the search was proper by

arguing that the search warrant did not authorize a search of him or his

personal property. Id. at 10.

In its Pa.R.A.P. 1925(a) Opinion, the trial court concludes that the

information to support the search warrant provided probable cause to search

Appellant himself because he was a “person present” during the execution of

an “all persons present” warrant. Trial Court Opinion, dated 8/17/15, at 3-

5. We disagree.

Police may detain individuals who happen to be present during the

execution of a search warrant of a residence. Commonwealth v. Wilson,

631 A.2d 1356, 1359 (Pa. Super. 1993). “However, in order to search or

arrest them, the police must establish independent probable cause.” Id.

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When the totality of circumstances establishes a sufficient nexus between

the persons to be searched, the location, and the original activity suspected,

an “all persons present warrant” is constitutional because “presence

becomes the descriptive fact satisfying the aim of the Fourth Amendment.”

Commonwealth v. Hawkins, 880 A.2d 678, 680 (Pa. Super. 2005)

(citations and quotations omitted). See also, e.g., Commonwealth v.

Heidelberg, 535 A.2d 611, 615 (Pa. Super. 1987) (concluding police

established a sufficient nexus where cocaine sales had been observed

between the occupant and other persons at the house within 24 hours of the

application for the warrant, a large quantity of cocaine was believed to be

kept at the house, the place to be searched was a private residence, and the

suspected crime involved contraband which could easily be hidden on the

body).

In the instant case, Appellant specifically challenges the seizure of: (1)

two cell phones found on Appellant’s person; (2) a glassine stamp bag

containing heroin recovered from a large plastic container on the floor near

Appellant; and (3) Suboxone strips in a men’s suit jacket. Appellant’s Brief

at 11.

Regarding the two cell phones recovered from the search of

Appellant’s person, our review of the record does not support the trial

court’s finding that the information to support the search warrant also

provided probable cause to search Appellant himself because he was a

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“person present” during the execution of an “all persons present” warrant.

Trial Court Opinion, dated 8/17/15, at 3-5. See also Wilson, supra at

1359; Heidelberg, supra at 615.

The face of the search warrant application did not include Appellant’s

name. The search warrant, the affidavit of probable cause supporting the

search warrant, and the evidence of record do not indicate the involvement

of persons other than Price in the sale of drugs to the CI.

Moreover, our review of the certified record does not support the trial

court’s finding that the search warrant was an “all persons present” warrant,

or that the totality of the circumstances leading up to the issuance of the

search warrant established a sufficient nexus to support the search of

Appellant’s person. See Hawkins, supra at 680. Accordingly, the seizure

of the two cell phones was illegal and the trial court should not have

admitted the cell phone evidence at trial. Commonwealth v. Johnson,

379 A.2d 72, 75 (Pa. 1977) (“Evidence obtained in violation of an

individual’s constitutional right to be free from unreasonable searches and

seizures cannot be used against him at trial.” (citation omitted)).

Regarding the heroin, the large plastic container that the police found

fell within the scope of the search. The warrant provided for the search of

the entire premises. That includes the search of containers found within the

premises. Accordingly, the search was proper. Commonwealth v. Reese,

549 A.2d 909, 911 (Pa. 1988) (stating, “[w]here a search warrant

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adequately describes the place to be searched and the persons and/or things

to be seized[,] the scope of the search ‘extends to the entire area in which

the object of the search may be found’ and properly includes the opening

and inspection of containers and other receptacles where the object may be

secreted[.]” (quoting United States v. Ross, 456 U.S. 798, 821-22

(1982))).

Regarding the Suboxone strips that the police officers recovered from

a men’s suit jacket found in the home, the same reasoning applies. The

police recovered the jacket from a bedroom closet inside the residence;

Appellant was not wearing the jacket at the time. It was a plausible

repository for narcotics or firearms on the premises. The search warrant

authorized police to search the apartment for evidence of the drug

operation, including any property located on premises.4 See Reese, supra

at 911-12. Accordingly, the police properly searched the jacket and the trial

court did not abuse its discretion in denying the suppression motion with

respect to the heroin and Suboxone strips.

Notwithstanding our determination pertaining to the illegality of the

cell phone seizure, we conclude that the trial court’s error was harmless.

Under the harmless error doctrine, this Court will affirm the trial court’s

4 Although police recovered evidence indicating Appellant resided in the apartment with Price, as noted above, Appellant maintains that the men’s suit jacket and the plastic container did not belong to him. This claim, however, is not relevant to the court’s analysis of the Motion to Suppress, but rather to the charges themselves.

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Judgment of Sentence despite trial court error if we conclude that the error

was harmless. Commonwealth v. Wright, 742 A.2d 661, 667 (Pa. 1999).

“Harmless error exists where: (1) the error did not prejudice the

defendant or the prejudice was de minimis; (2) the erroneously admitted

evidence was merely cumulative of other untainted evidence which was

substantially similar to the erroneously admitted evidence; or (3) the

properly admitted and uncontradicted evidence of guilt was so overwhelming

and the prejudicial effect of the error was so insignificant by comparison that

the error could not have contributed to the verdict.” Commonwealth v.

Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (quotation and citations omitted).

Our Supreme Court has noted that “[t]he doctrine of harmless error is

a technique of appellate review designed to advance judicial economy by

obviating the necessity for a retrial where the appellate court is convinced

that a trial error was harmless beyond a reasonable doubt. Its purpose is

premised on the well-settled proposition that a defendant is entitled to a fair

trial but not a perfect one.” Commonwealth v. Thornton, 431 A.2d 248,

251 (Pa. 1981) (quotation and citations omitted).

In this case, the Commonwealth introduced substantial evidence that

established that Appellant had committed the crimes of PWID, Simple

Possession, Possession of Drug Paraphernalia, and EWOC. Agent Sepic

relied on numerous factors to support his expert opinion regarding

Appellant’s possession with intent to deliver, including the presence of the

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shotgun, the amount and weight of the heroin, the cutting agent, the scales,

the empty stamp bags, the small spoon, the small rubber bands, and the

zip-lock baggies with bottom corners cut out (referred to at trial as

“diapers”). N.T. Trial, 4/7/15, at 110-16. Agent Sepic clarified that the cell

phone evidence was “not included in [his] opinion on this possession with

intent to deliver.” Id. at 115.

In light of all the evidence presented at trial, we conclude that the trial

court’s error was harmless. Accordingly, Appellant’s challenge to the denial

of his suppression motion fails.

In his second claim, Appellant challenges the admission of the shotgun

at trial. He avers that the trial court “erred in determining that a [shotgun]

found at Christy Price’s residence was relevant to [Appellant]’s charges,

which focused on the delivery of narcotics.” Appellant’s Brief at 12.

Appellant also avers that the admission of the shotgun evidence was unfairly

prejudicial, confusing, and misleading, and that the trial court’s decision to

admit the shotgun at trial did not constitute harmless error. Id. at 13-14.

The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (quotation and citation omitted). “[A]n abuse of discretion is

not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

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unreasonable, or the result of bias, prejudice, ill-will[,] or partiality, as

shown by the evidence or the record.” Commonwealth v. Cameron, 780

A.2d 688, 692 (Pa. Super. 2001) (citation omitted).

Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) (citations

omitted). “Evidence is relevant if: (a) it has any tendency to make a fact

more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” Pa.R.E. 401. See also

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). “Evidence

that is not relevant is not admissible.” Pa.R.E. 402. In addition, “[t]he court

may exclude relevant evidence if its probative value is outweighed by a

danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403.

In the instant case, Appellant filed a Motion in Limine seeking to

exclude evidence of the shotgun at trial. Appellant challenged the admission

of the shotgun because: (1) the Commonwealth did not charge him with

possessing the shotgun; (2) the Commonwealth did not seek a sentencing

enhancement based on the shotgun; (3) the shotgun was not relevant to the

drug-related charges; and (4) the shotgun was extremely prejudicial. N.T.

Trial, 4/7/15, at 8-9.

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Agent Sepic opined that the proximity of the shotgun to the narcotics

found in the home led him to believe that Appellant possessed the controlled

substances recovered from the house not for personal use, but with the

intent to deliver or sell. Id. at 110, 115.

We conclude that the trial court did not abuse its discretion in finding

that the shotgun was relevant and admissible to prove that Appellant

possessed the drugs with the intent to deliver. See Commonwealth v.

Watley, 81 A.3d 108, 114 (Pa. Super. 2013) (observing that the

determination of whether a person possesses a drug with intent to deliver is

based upon the totality of circumstances, including whether police found

firearms and ammunition in close proximity to drugs); In re R.N., 951 A.2d

363, 367 (Pa. Super. 2008) (stating that the presence of a firearm in close

proximity to drugs is a relevant factor in establishing PWID). 5 Accordingly,

Appellant’s evidentiary challenge is without merit.

In his third issue, Appellant argues that the trial court improperly

permitted Agent Ronald Sepic to testify as an expert witness at trial.

Appellant contends that the Commonwealth: (1) failed to provide adequate

notice that Agent Sepic would provide expert testimony at trial, and (2)

5 We note that Appellant failed to explain how the shotgun was unfairly prejudicial. The mere assertion that evidence is prejudicial is insufficient and a misstatement of the standard. See Commonwealth v. Patterson, 91 A.3d 55, 75-76 (noting most relevant evidence is prejudicial, and finding that defendant failed to establish cross-examination on rap lyrics was unduly prejudicial); Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 403.09 (2016 ed.).

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“failed to provide to the defense the contents of his testimony prior to trial”

pursuant to Pa.R.Crim.P. 573. Appellant’s Brief at 15.

Rule 573 provides that where a defendant has not requested

discovery, the Commonwealth is not required to inform him or her prior to

trial that it intends to call an expert as a witness. See Pa.R.Crim.P. 573(A);

see also Pa.R.Crim.P. 573(B)(1). Although Rule 573(B)(2)(b) provides a

mechanism whereby the trial court may order a Commonwealth expert to

prepare a report and provide such report to the defense, any such order is

discretionary, and the defendant is required to move the trial court for such

discovery. See Pa.R.Crim.P. 573(B)(2)(b).

In general, the admission of expert testimony is a matter left largely to

the discretion of the trial court, and we will not reverse its rulings absent an

abuse of discretion. Commonwealth v. Watson, 945 A.2d 174, 176 (Pa.

Super. 2008). “An expert’s testimony is admissible when it is based on facts

of record and will not cause confusion or prejudice.” Id. (citation omitted).

Expert testimony is admissible and important in drug cases to establish that

the drugs were intended for distribution when other evidence is not

conclusive. Commonwealth v. Ratsamy, 934 A.2d 1233, 1236-37 (Pa.

2007) (stating that expert testimony “is admissible to aid in determining

whether the facts surrounding the possession of controlled substances are

consistent with intent to deliver.”); Commonwealth v. Baker, 72 A.3d 652,

659 (Pa. Super. 2013).

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Immediately prior to trial, Appellant’s counsel learned that Agent

Sepic, rather than Officer Kampert, would testify as an expert. Appellant

challenged the admission of Agent Sepic’s testimony in a Motion in Limine

because of lack of notice, and because his expert testimony would be

duplicative and prejudicial.

The Commonwealth responded that the reason for the substitution of

Agent Sepic for Officer Kampert was that “it’s more beneficial to have an

expert who’s not the affiant in the case [. . .] to elude the perception of any

bias that the affiant might have towards his own case.” N.T. Trial, 4/7/15,

at 13. The trial court denied Appellant’s motion because Agent Sepic’s

expertise was “obvious” based on his assignment on the special drug task

force. Id. at 14. The trial court concluded Appellant would not suffer

prejudice because Officer Kampert would have provided similar expert

testimony at trial regarding Appellant’s intent.

Because we discern no violation of Rule 573 by the Commonwealth,

the trial court did not err or abuse its discretion by refusing to preclude

Agent Sepic from testifying as an expert at trial.

Even assuming, arguendo, that there had been a Rule 573 violation,

such a violation would not automatically entitle Appellant to a new trial.

Appellant must also establish “that the introduction of the expert testimony

caused him prejudice to the degree that it affected his trial strategy or likely

affected the outcome of the proceedings.” Commonwealth v. Roles, 116

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A.3d 122, 133 (Pa. Super. 2015) (citations omitted). Here, Appellant has

shown no prejudice from Agent Sepic’s testimony. Beyond his bald

allegations of prejudice, Appellant’s brief is devoid of any assertion that

Agent Sepic’s testimony changed or impacted his trial strategy. Nor does he

demonstrate, much less argue, that the expert testimony likely affected the

outcome of the proceedings. See id. Accordingly, Appellant’s third claim is

without merit.

Based on the foregoing analysis, we affirm the May 13, 2015

Judgment of Sentence.

Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/1/2016

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