The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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.
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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
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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.
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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
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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
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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
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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
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Id.
hat
Id.
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
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[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
omitted).
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
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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
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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