Com. v. Seng, D.

• Court: Superior Court of Pennsylvania
• Decided: March 15, 2022
• Docket: 1180 MDA 2021
• Status: Unpublished

Opinion

J-S08014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANNY SENG : : Appellant : No. 1180 MDA 2021

Appeal from the Judgment of Sentence Entered July 9, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002743-2020

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BOWES, J.: FILED: MARCH 15, 2022

Danny Seng appeals from the aggregate judgment of sentence of seven

to fourteen years of incarceration, which was imposed after a jury convicted

him of possession with intent to deliver (“PWID”) heroin/fentanyl, PWID

cocaine, conspiracy, recklessly endangering another person (“REAP”), and

tampering with evidence. We vacate Appellant’s judgment of sentence and

remand for a new trial.

On the morning of August 23, 2019, Appellant and two individuals,

James Patterson (“Patterson”) and Sean Quarles (“Quarles”), drove in a silver

Infiniti to the R&M Variety shop in Harrisburg. While inside the store, video

surveillance captured the three men standing at the counter from 11:48 a.m.

to 11:51 a.m. During that period, Appellant pointed to a digital scale.

Ultimately, Patterson purchased that digital scale, as well as a mortar and

pestle, a Pyrex measuring cup, and a straining utensil, all of which were J-S08014-22

consistent with the manufacturing of crack cocaine. The three men then left

in the silver Infiniti.

At approximately 7:30 p.m., Patrol Officer Andrew Cortelazzi observed

a silver Infiniti with the license plate “LCR 2079” in an area of the city known

for drug-trafficking. The Infiniti had illegal tint on the rear windows and an

inoperable center brake light. The officer followed the vehicle until it began

to park. At that time, the officer activated his emergency lights to initiate a

traffic stop, but the Infiniti drove away at a high rate of speed. As

Officer Cortelazzi pursued the vehicle, he observed a blue bag being thrown

from the passenger’s side of the Infiniti. Officer Cortelazzi notified other

officers to be on the lookout for the vehicle. In the meantime, he stopped his

pursuit to investigate the discarded bag. Inside the bag, he recovered what

was later tested and confirmed as a waxy paper packet containing 12.32

grams of heroin and fentanyl, a knotted plastic bag corner containing one MDA

tablet, one white glassine bag marked with a snake head image and “420

VENOM” with cocaine residue, five pink glassine bags containing a total of 0.85

grams of heroin and fentanyl, one partial pink glassine bag containing residue,

one white glassine bag marked with a snake head image and “420 VENOM”

with residue, one knotted plastic bag containing 12.3 grams of cocaine base,

0.06 grams of marijuana, $106.01 in cash, a piece of paper, numerous rubber

bands, grains of rice, one metal razor blade, a pencil, a plastic toy, metal

scissors, four empty plastic bags, a firearm holster, a straw with residue, and

a digital scale.

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Later that evening, Patrol Officer Brian Carriere received an advisory

report of an abandoned vehicle on Bombaugh Street in Harrisburg.

Officer Carriere responded to the area and found the silver Infiniti with license

plate “LCR 2079” parked in the middle of the street. Edwin Aleman, Sr.

(“Aleman”), who owns a garage in the area, had earlier observed the Infiniti

stop in the middle of the road because another vehicle was obstructing traffic.

The driver and front seat passenger emerged from the vehicle and ran through

an alleyway. Officers reviewed footage from a video camera on a nearby

chicken coop and identified the two men as Appellant and Quarles. At trial,

Aleman viewed the same video and identified the two men in the video as the

same men who parked the Infiniti near his garage and ran through the alley.

The Infiniti was towed and on August 26, 2019, a search warrant was

executed. The search revealed, inter alia, a cell phone and a receipt from the

R&M Variety Shop. The car and some of the items were dusted for finger and

palm prints. Patterson was the source for the print lifted from the cell phone,

while Patterson, Quarles, ad Appellant were sources for some of the nineteen

prints lifted from inside the vehicle. As a result of the foregoing, an arrest

warrant was issued for Appellant.

Meanwhile, and also on August 26, 2019, Appellant’s state parole agent,

Erin Henry (“Henry”), visited Appellant’s approved address and had a meeting

with him without issue. Some time after that visit, Henry learned of the arrest

warrant. She attempted to contact Appellant, but he could no longer be found

at his approved address. Appellant did not notify Henry of an address change,

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despite being required to do so, and did not contact her after the August 26,

2019 visit. A search warrant was executed at Appellant’s approved residence

in September, which revealed a digital scale and a small amount of marijuana.

However, Appellant was not present. The United States Marshals Fugitive

Task Force attempted to locate Appellant, but he was not located until his

arrest in June 2020.

On May 17, 2021, Appellant proceeded to a four-day joint jury trial with

co-defendant Quarles. The Commonwealth presented the above evidence,

including testimony from two state parole agents who had supervised

Appellant over Appellant’s objection. Additionally, an expert witness opined

that the items recovered from the discarded blue bag were possessed with the

intent to deliver.

Appellant testified on his own behalf. According to Appellant, he pointed

to the scale to let Patterson know he had the same scale at home for his

personal marijuana use. As to the location where the vehicle was ultimately

abandoned, Appellant testified that he had gone with Quarles and Patterson

to Aleman’s garage for an inspection before going to the R&M Variety Store,

but because Quarles did not have insurance documents, they had to return

later. When Quarles picked up Appellant later in the day to return to the

garage, Appellant sat in the front passenger’s seat. During the ensuing chase,

Appellant asked him to pull over or to let him out, but Quarles sped away from

the officer and discarded the blue bag from the vehicle. Appellant did not

know what was in the bag. He claimed that he ran from the scene and stopped

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reporting to parole out of fear of being labeled a snitch and because he did

not yet have enough money to hire legal counsel for the instant charges.

At the conclusion of the trial, the jury convicted Appellant of all charges.1

On July 9, 2021, the trial court sentenced Appellant to the following concurrent

terms of incarceration: seven to fourteen years for PWID heroin/fentanyl, two

and one-half to five years for PWID cocaine, seven to fourteen years for

conspiracy, one to two years for REAP, and 9 months to two years for

tampering with evidence. Appellant filed a post-sentence motion, which the

trial court denied. This timely filed appeal followed. Both Appellant and the

trial court have complied with Pa.R.A.P. 1925. Appellant presents the

following issues for our review:

A. Whether the trial court erred in allowing state parole agents to testify Appellant was on state parole; implicating Appellant’s prior conviction for an unrelated offense?

B. Whether the trial court erred in allowing the testimony of Appellant’s state parole agents regarding Appellant’s behavior while on supervision?

C. Whether the trial court erred in accepting the jury’s verdict where the Commonwealth failed to present sufficient evidence of possession?

D. Whether the trial court erred in accepting the jury’s verdict which was contrary to the evidence presented at trial, which supported only co-defendant Quarles possession of the narcotics?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

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1 Quarles was also convicted as charged. He has separately appealed his judgment of sentence to this Court at 1204 MDA 2021.

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We begin with Appellant’s sufficiency challenge.2 Whether the evidence

was sufficient to support the conviction presents a matter of law; our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Walls, 144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting

our inquiry,

[w]e assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner. We must determine whether there is sufficient evidence to enable the fact-finder to have found every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the factfinder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered.

Whether evidence was properly admitted does not factor into our analysis, as sufficiency is not determined upon a diminished record. Lastly, the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence.

2 We begin with Appellant’s sufficiency challenge because, if granted, the remedy would be discharge on his PWID charges, whereas the remedy for a successful challenge to the admissibility or weight of the evidence would be a new trial. See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

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Commonwealth v. Bowens, 265 A.3d 730, 740–41 (Pa.Super. 2021)

(cleaned up).

Specifically, Appellant challenges the sufficiency of the Commonwealth’s

evidence to prove the possession element of his PWID charges. See

Appellant’s brief at 19. According to Appellant, nobody testified that he was

the one who threw the blue bag out the window and nothing found on him or

in his residence supported his possession of the items in the bag. Id. at 20.

Thus, Appellant contends that he was merely present near the bag and that

was insufficient to convict him of PWID. Id. at 21.

Since Appellant was not found to be in actual possession of the drugs,

the Commonwealth’s case rested on constructive possession, which 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.”

Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). The

Commonwealth must establish “conscious dominion,” which is defined as “the

power to control the contraband and the intent to exercise that

control.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004)

(citation omitted). In assessing whether the Commonwealth has established

the power and intent to exercise control, we look to the totality of the

circumstances:

Constructive possession may be proven by circumstantial evidence and the requisite knowledge and intent may be inferred from examination of the totality of the circumstances. Moreover,

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we review circumstantial evidence under the same standard as direct evidence, i.e., that a decision by the trial court will be affirmed so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Smith, 146 A.3d 257, 263 (Pa.Super. 2016) (quotation

marks and citations omitted). “It is well settled that facts giving rise to mere

‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case

of constructive possession.” Commonwealth v. Valette, 613 A.2d 548, 551

(Pa. 1992). Thus, we have established that a minimum requirement in

constructive possession cases is that the defendant have knowledge of the

item’s existence. Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa.Super.

1982) (“At the least, the evidence must show that the defendant knew of the

existence of the item.”) (citations omitted).

The trial court summarized its conclusions regarding Appellant’s

sufficiency challenge as follows:

Based on the totality of all this evidence discussed above, it was reasonable for the jury to find that Appellant was guilty of possession of the fentanyl heroin mixture and the cocaine with intent to distribute. As to the element of possession, even if Quarles was the owner of the Infiniti, was the individual who threw the contraband from the Infiniti, and who physically controlled the contraband during the incident, it does not necessarily follow that there was insufficient evidence to find that Appellant constructively possessed the contraband. On the evening in question, Appellant and Quarles were both seated in the front of the Infiniti right next to each other, and, therefore, both would have had equal access and control over the area of the car from which the contraband was thrown, and Appellant would have had the same access to and dominion over the contraband that Quarles did. Therefore, to the extent it was not Appellant who decided to fling the contraband out of the window, this fact is of no moment to establishing the element of constructive possession. These facts combined with Appellant’s consciousness

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of guilt which can reasonably be inferred by his flight from the Infiniti on the night in question, his subsequent absconding from his place of residence, and his failure to make any contact with his parole officer, is more than sufficient for a reasonable jury to find that the requisite element of possession was established based on the totality of the circumstances.

Trial Court Opinion, 11/8/21, at 11.

Upon review, we agree with the trial court’s analysis and adopt it as our

own. Viewing all the evidence admitted at trial in the light most favorable to

the Commonwealth, there was sufficient evidence to establish beyond a

reasonable doubt that Appellant possessed the drugs located in the blue bag.

Accordingly, Appellant is not entitled to relief on this claim.

We next address Appellant’s issues concerning the court’s allowance of

testimony from Appellant’s state parole agents regarding Appellant’s parole

status. We consider these issues mindful of the following:

An appellate court may reverse a trial court’s ruling regarding the admissibility of evidence only upon a showing that the trial court abused its discretion. In determining the admissibility of evidence, the trial court must decide whether the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect.

Commonwealth v. Matthews, 783 A.2d 338, 339–40 (Pa.Super. 2001)

According to Appellant, the trial court first erred by allowing the parole

agents to testify because they “directly implicated that Appellant had a prior

criminal offense.” Appellant’s brief at 13 (cleaned up). Secondly, Appellant

contends the court erred in allowing additional testimony regarding Appellant’s

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behavior while on supervision, i.e., his failure to report or notify agents of a

change in address when he absconded, because these technical parole

violations were not relevant or probative. Id. at 16-17. Appellant insists that

introduction of these prior bad acts was nothing more than an “attempt to

persuade the jury that the fact Appellant committed crimes and digressions in

his past . . . must mean he is guilty of these offenses.” Id. at 17.

Pennsylvania Rule of Evidence 404(b) provides as follows:

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.

Pa.R.E. 404(b).

In Matthews, this Court considered the admissibility of testimony

identifying a witness as defendant’s parole officer as follows:

By informing the jury that DeSantis is Appellant’s parole officer, the Commonwealth in effect told the jury that Appellant is a convicted criminal; that Appellant’s criminal conviction was for an offense serious enough that it resulted in incarceration (one can only be on parole after a period of incarceration). When reviewed in light of Pa.R.E. 404(b), this evidence presented by the Commonwealth clearly constitutes evidence of other crimes committed by Appellant.

Matthews, supra at 340.

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As in Matthews, the evidence that Appellant was on parole constituted

evidence of other crimes committed by Appellant. In support of admission,

the Commonwealth argued that Appellant’s abscondence from parole was

“highly relevant as to consciousness of guilt and flight thereafter and motive

as to why he ran.” N.T., 5/17/21-5/20/21, at 11. Finding that “flight is always

relevant,” the trial court allowed the testimony but cautioned the

Commonwealth not to elicit the crimes underlying Appellant’s parole. Id. at

13. In its opinion to this Court, the trial court elaborated:

Appellant’s abscondence from his parole address along with his failure to report to his parole officer has potentially broader implications as to Appellant’s continuing state of mind and consciousness of guilt in the weeks and months after the night in question. Therefore, we believe that the testimony regarding Appellant’s abscondence from his parole address had substantial probative value on its own, even considering the additional evidence regarding Appellant’s flight from the Infiniti.

Trial Court Opinion, 11/8/21, at 15 (emphasis in original).

At trial, the Commonwealth cited Commonwealth v. Soto, 202 A.3d

80 (Pa.Super. 2018), in support of admission of this testimony. In Soto, this

Court found that two references to Soto’s parole status were “relevant to

explain his flight from the accident scene and show motive for his attempts to

avoid the police. Id. at 101 (citation omitted). In so concluding, we noted

that the references “were not so unfairly prejudicial as to outweigh the

relevance of the evidence.” Id. (footnote omitted). Appellant rejects this

argument raised by the Commonwealth, contending that the Commonwealth

could have sought a consciousness of guilt instruction based on Appellant’s

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attempt to avoid apprehension for the arrest warrant issued for the charges

herein. See Appellant’s brief at 15-16.

We find our decision in Commonwealth v. Santiago, 822 A.2d 716

(Pa.Super. 2003) particularly instructive. Therein, Santiago had sought to

suppress evidence of his change in travel plans to leave the country as well

evidence that he failed to inform his parole officer of the change. The trial

court denied the motion to suppress evidence of his change in travel plans.

However, in balancing the probative value and potential for prejudice, the trial

court determined that the prejudicial impact of the parole evidence

outweighed its probative value, so the court granted that portion of Santiago’s

motion. On appeal to this Court, the Commonwealth argued that the trial

court erred in suppressing the parole evidence because Santiago’s failure to

inform his parole officer of the change constituted a parole violation and

showed a heightened consciousness of guilt and willingness to violate parole

to avoid apprehension. Id. at 727-28. Upon review, we agreed with the trial

court:

Initially, we note that the fact that Santiago changed his travel plans without the permission of his parole officer does not fall within one of the traditionally admissible categories [in Pa.R.E. 404(b)(2)]. Moreover, when a jury is informed that an accused is on parole, they are being advised that the accused is a convicted criminal and that the criminal conviction was for an offense serious enough that it resulted in incarceration (since one can only be on parole after a period of incarceration). Given the high prejudicial value of this evidence balanced against its limited probative value, we do not find that the trial court abused its discretion in limiting this evidence to the plans of flight to show consciousness of guilt and excluding reference to Santiago’s parole.

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Id. at 728–29 (cleaned up).

As observed by Appellant, the Commonwealth could have and did

introduce evidence of Appellant’s heightened and continued consciousness of

guilt beyond his initial fleeing from the Infiniti via evidence that he could not

be apprehended from the date of his arrest warrant in September 2019 until

June 2020. Adding on that Appellant also failed to (1) report to his parole

officer for that same period of time, (2) provide notice of his change in

address, or (3) relay the circumstances surrounding the incident to the officer

was of limited probative value given the highly prejudicial impact of informing

the jury that he was on parole.3

Nonetheless, we observe that Appellant may not be entitled to relief if

the error was harmless. “The harmless error doctrine, as adopted in

Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not

a perfect trial.” Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).

This Court will find harmless error if the certified record establishes that either:

(1) the error did not prejudice the defendant or the prejudice was de minimis; or (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 ____________________________________________

3 We note that when evidence is admitted pursuant to Pa.R.E. 404(b)(2), “the party against whom it is offered is entitled, upon request, to a limiting instruction.” Pa.R.E. 404, Comment; see also Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002). Appellant’s trial counsel objected to the admission of this evidence before trial but did not request a cautionary instruction and the trial court did not provide one of its own volition.

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insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671–72 (Pa. 2014) (citations

omitted). We have cautioned that a finding under the third prong “is not to

be arrived at lightly. Accordingly, we have been reluctant to find an error

harmless on the basis of overwhelming evidence.” Rasheed, supra (cleaned

up). Finally, “the burden of establishing that the error is harmless beyond a

reasonable doubt rests upon the Commonwealth.” Id.

In the Commonwealth’s half-page argument, it fails to meet this burden

as it does not assert or even attempt to prove that any error in the admission

of the testimony was harmless. Instead, The Commonwealth contends that

the testimony was relevant to establish Appellant’s “continued state of mind

and consciousness of guilt[.]” Commonwealth’s brief at 4. Even assuming

the Commonwealth attempted to sustain its burden, we do not find any of the

three prongs satisfied herein. As discussed, the testimony was prejudicial.

Moreover, it was not cumulative of other untainted evidence. Finally, we

cannot conclude that “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.” Hairston, supra. Thus, the admission of this testimony was not

harmless error.

Therefore, we conclude that the trial court abused its discretion in

admitting testimony that Appellant was on parole in violation of Pa.R.E. 404(b)

and Appellant is entitled to a new trial. Accordingly, we vacate Appellant’s

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judgment of sentence and remand for a new trial. Given our resolution of

these issues, we do not reach Appellant’s weight challenge.

Judgment of sentence vacated. Case remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/15/2022

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