J-S53025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL RAY JAMES,

                            Appellant                  No. 318 WDA 2014


           Appeal from the Judgment of Sentence of February 6, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000939-2013


BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 10, 2014

       Appellant, Michael Ray James,1 appeals from the judgment of sentence

following his jury trial convictions for two counts each of possession with

intent to deliver a controlled substance (PWID) and possession of a

controlled substance, and one count each of endangering the welfare of a

child, possession of drug paraphernalia, and conspiracy.2 We affirm.

       The trial court set forth the facts and procedural history of this case as

follows:


____________________________________________


1
   Appellant was tried jointly with his co-defendant, Deshuna Crosby. Crosby
is currently appealing her judgment of sentence in a companion case, 231
WDA 2014.
2
   35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A.
§ 4304, 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. § 903, respectively.



*Retired Senior Judge assigned to the Superior Court.
J-S53025-14


          On February 12, 2013, Appellant and a co-conspirator,
       De’Shuna Crosby, were found by the U.S. Marshall’s
       Fugitive Task Force in Room 327 of the Wyngate Hotel in
       Summit Township[, Pennsylvania]. The Task Force was
       serving an arrest warrant on Appellant after receiving a tip
       that he was at the hotel.

          When the Task Force arrived to serve the arrest
       warrant, the officers knocked and announced their
       presence. After a few minutes, Appellant answered the
       door, stepped into the corridor and was placed in handcuffs.

          Still inside the hotel room were Crosby and her four-
       month old infant. Appellant claims to be the infant’s father.
       The officers directed Crosby to step into the hallway.
       Crosby initially ignored the request, walked back into the
       room, picked up [a] car seat with the infant [inside of it], a
       baby bag and a coat. Crosby then exited the room.

           Crosby was asked whether she had anything illegal or
       any weapons. Crosby denied possession of anything illegal
       or having weapons and voluntarily began emptying her
       pants’ pockets. The officers asked her if they could search
       the car seat. Crosby consented and lifted the baby from the
       car seat. In the car seat, the officers found three baggies of
       white and/or tan substances later identified as 53.6 grams
       of heroin and 128.9 grams of cocaine. There were two
       plastic bags of cocaine and one plastic bag of heroin.

           When Appellant realized the drugs were discovered, he
       exclaimed, “-- those aren’t hers. They’re mine. That’s not
       hers. It’s mine.” At trial [following the denial of Appellant’s
       motion to suppress evidence], Appellant testified that he
       knew the drugs were in the room and admitted that he was
       in possession of the drugs. Appellant admitted to being a
       drug dealer of marijuana.

           Upon a search of Crosby’s person, the police found
       almost $2[,]600.00 hidden inside Appellant’s bra. Crosby
       was unemployed. In fact, Crosby was in the Erie County
       Prison Work Release Program and only had permission to
       leave to apply for jobs on that day.




                                    -2-
J-S53025-14


           A digital scale used for weighing drugs and plastic
       baggies used for packaging drugs were found in plain view
       in the hotel room on top of the microwave. No drug
       paraphernalia for immediate use of the drugs was found in
       the hotel room or on Appellant or Crosby. Appellant and
       Crosby denied using the drugs which were found and denied
       possessing any paraphernalia for drug usage. There was no
       evidence in the room to suggest that other people had been
       there using drugs.

           Appellant filed an [o]mnibus pre-trial [m]otion which
       was denied by the Honorable Judge Ernest DiSantis by
       [o]rder [on] September 30, 2013. After a [joint] jury trial
       [with co-conspirator Crosby] on November 12th and 13th,
       2013, Appellant was found guilty [of the aforementioned
       charges].

                         *        *           *

           Appellant was sentenced on January 10, 2014, as
       follows:

              Count 1: Conspiracy/[PWID]: 48 to 96 months
          of incarceration concurrent with Count 2, a sentence
          in the mitigated range;

              Count 2: [PWID cocaine]: mandatory minimum
          of 48 to 96 months [] of incarceration consecutive to
          Count 5;

              Count 3: Endangering the Welfare of a Child: 9
          to 18 months of incarceration consecutive to Count
          2, a sentence in the mitigated range;

             Count 4: Possession of Drug Paraphernalia: 6 to
          12 months of incarceration concurrent with Count 2;

              Count 5: [PWID heroin]: mandatory minimum
          [] of 5 [to] 10 years of incarceration consecutive to
          Docket Number 930 of 2013;

             Count 6: Possession of a Controlled Substance
          [(heroin)]: Merged with Count 5;


                                  -3-
J-S53025-14


                  Count 7: Possession of a Controlled Substance
              [(cocaine)]: Merged with Count 2.

             On January 21, 2014, Appellant filed a [m]otion for
         [r]econsideration of [s]entence or [s]entence [m]odification
         which was denied by [o]rder on February 6, 2014.

             On February 20, 2014, Appellant filed a [n]otice of
         [a]ppeal [challenging] the [o]rders [dated] September 30,
         2013, January 10, 2014 and February 6, 2014. Appellant
         filed a [Pa.R.A.P.] 1925(b) [c]oncise [s]tatement of [errors]
         [c]omplained of on [a]ppeal on March 7, 2014, and an
         [a]mended [Rule 1925(b) statement] on March 14, 2014.

Trial Court Opinion, 3/25/2014, at 1-3 (record citations omitted).3

       On appeal, Appellant presents the following issues for our review:

         A. Whether the suppression court [erred] when it refused to
            suppress the items found in the car seat, holding
            Appellant’s child, following a warrantless search?

         B. Whether the trial court [erred] in [its] pre-trial ruling to
            allow the Commonwealth’s use of Appellant’s prior
            testimony indicating that he was a marijuana dealer?

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

       In his first issue presented, Appellant argues that the suppression

court erred by failing to suppress the physical evidence obtained by police.

Id. at 11-15. More specifically, Appellant asserts that he had a reasonable

expectation of privacy in the baby car seat. Id. at 11-12. Appellant claims

that the trial court erred by finding “the search was still permissible as either

____________________________________________


3
   Judge William R. Cunningham authored the March 25, 2014 opinion. On
March 28, 2014, Judge Ernest J, DiSantis, Jr. authored a supplemental
opinion pursuant to Pa.R.A.P. 1925(a) addressing Appellant’s suppression
issue, because he presided over Appellant’s omnibus pretrial motions.



                                           -4-
J-S53025-14



‘consented to’ by [] Crosby, a ‘search incident to a lawful arrest’ of []

Crosby, or pursuant to the ‘inevitable discovery doctrine.’”       Id. at 12.

Appellant argues that officers did not have reasonable suspicion at the time

of the car seat search and that when Crosby took the baby out of the carrier

at the request of police, “[t]hose actions are consistent with a person

believing they had no choice.” Id. at 14. Appellant further claims that the

search could not be considered as incident to the arrest of either himself or

Crosby because: “1) If the supposed lawful arrest was [Appellant], he was

in handcuffs and unable to reach the car seat or utilize any items contained

therein; 2) If the supposed lawful arrest was [] Crosby, she was not under

arrest at the time of the search, nor did the officers know she was going to

be arrested at that point.” Id. Moreover, Appellant asserts that “[e]ven if

they had arrested [] Crosby before the search, no testimony was offered to

even suggest that the police would have searched the car seat as a matter

of course prior to turning the child over to the relative.” Id. at 15. Finally,

Appellant argues that if the search were incident to Crosby’s arrest, “there

[was] no justification for a warrantless searching of closed or concealed

areas outside the arrestee’s immediate control.” Id.

      Our standard of review of an order denying suppression motion is well-

settled:

           We are limited to determining whether the lower court's
           factual findings are supported by the record and whether
           the legal conclusions drawn therefrom are correct. We may
           consider the evidence of the witnesses offered by the
           Commonwealth, as [the prevailing party], and only so much

                                     -5-
J-S53025-14


        of the evidence presented by [the] defense that is not
        contradicted when examined in the context of the record as
        a whole. We are bound by facts supported by the record
        and may reverse only if the legal conclusions reached by the
        court were erroneous.

Commonwealth v. Landis, 89 A.3d 694, 702 (Pa. Super. 2014) (citation

omitted).

     In this case, the suppression court offered a plethora of grounds to

support its denial of Appellant’s motion to suppress. First, the suppression

court determined that Appellant had no expectation of privacy in the car seat

because he had voluntarily abandoned it. Trial Court Opinion, 3/28/2014, at

6-7. The suppression court further noted that Appellant was impermissibly

raising constitutional claims on behalf of his co-defendant, Crosby. Id. at 7.

Moreover, the suppression court determined that Crosby had actual or

apparent authority to voluntarily consent to search the car seat. Id. at 7-9.

The suppression court also determined that police had probable cause to

arrest Crosby because she was in violation of the terms of her work release

when police found her at an unauthorized location.     Id. at 9.     Finally, the

suppression court noted that, pursuant to the doctrine of inevitable

discovery, after both Appellant and Crosby were arrested, the police would

have discovered the narcotics hidden in the infant’s car seat. Id.

     We agree with the suppression court that under the facts established

at Appellant’s suppression hearing Crosby and Appellant shared joint

authority over the car seat and that Crosby, through her actions, gave

implied consent for the officers’ search.    Because we conclude that the


                                    -6-
J-S53025-14



officers effectuated a consensual search with the permission of one who

enjoyed common authority over the car seat, we hold that Appellant is not

entitled to relief on his first claim.

      Here, the baby car seat was in a hotel room with equal access to

Appellant and Crosby. Moreover, the seat was used to transport an infant

parented by both Crosby and Appellant.         “The law is well-settled that a

warrantless search may be made with the voluntary consent of a third party

who possesses ‘common authority over or other sufficient relationship to the

premises or effects sought to be inspected.’” Commonwealth v. Gibbons,

549 A.2d 1296, 1300 (Pa. Super. 1988) (citations omitted). “Common

authority rests on mutual use of the property by persons generally having

joint access or control for most purposes, so that it is reasonable to

recognize that any of the co-inhabitants [or co-possessors] has the right to

permit the inspection in his own right and that the others have assumed the

risk that one of their number might permit the common area to be

searched.” Id. at 1301 (ellipses and citation omitted).

      “[A]ctual consent, implied consent, search incident to lawful arrest,

and exigent circumstances may negate the necessity of obtaining a warrant

before conducting a search.”        Commonwealth v. Riedel, 651 A.2d 135,

139 (Pa. 1994).      “[T]he Commonwealth bears the burden of establishing

that a consent is the product of an essentially free and unconstrained

choice—not the result of duress or coercion, express or implied, or a will




                                         -7-
J-S53025-14



overborne—under the totality of the circumstances.”      Commonwealth v.

Caban, 60 A.3d 120, 130 (Pa. Super. 2012).

      Here, the evidence showed that: 1) Appellant is the infant’s father; 2)

after Appellant was placed in handcuffs, Crosby remained in the hotel room

with the infant; 3) when asked to step into the hallway, Crosby came out

with the infant, inside the car seat, and a diaper bag. The testimony of the

circumstances establishes Crosby’s common authority over the car seat.

Thereafter, when asked if police could search her, Crosby “voluntarily began

to empty her pockets” and she “voluntarily bent over, pulled the baby out

and let [the officer] look at the car seat.” N.T., 9/30/2013, at 9. While she

did not verbally reply, Crosby’s actions show implied consent. Upon review

of the certified record, there is no additional evidence that Crosby was under

undue police coercion or duress at the time of the search. Accordingly, the

car seat was under the joint control of Appellant and Crosby and Crosby

voluntarily consented to a search. Thus, the search was permissible and the

suppression court properly denied relief. As such, Appellant’s first issue is

without merit.

      In his second issue presented on appeal, Appellant claims the trial

court erred by allowing the Commonwealth to present Appellant’s prior

testimony, in an unrelated case, wherein he admitted to selling marijuana

and ecstasy. Appellant’s Brief at 16-18. Appellant claims that evidence of

selling marijuana and ecstasy was irrelevant to whether he possessed

cocaine and heroin with intent to deliver it. Id. at 17. Further, Appellant

                                    -8-
J-S53025-14



argues that the trial court erred in permitting the aforementioned prior act

evidence, because the potential for unfair prejudice outweighed its probative

value. Id. at 17.

     On this issue, the trial court determined:

        Appellant testified on direct appeal that he possessed the
        drugs in question, but that he was not intending to sell
        them. This testimony opened the door to Appellant’s prior
        testimony under oath at a homicide trial to being a drug
        dealer. Appellant cannot use his status as a drug dealer to
        defend a homicide charge and then later deny his testimony
        about being a drug dealer to defeat the present drug
        dealing charges. Because of the patent inconsistencies,
        Appellant would have been lying under oath at one of his
        trials. Therefore, it was permissible impeachment evidence
        to allow inquiry to Appellant’s prior sworn testimony
        admitting to dealing drugs in Erie County.

Trial Court Opinion, 3/25/2014, at 8.

     “It is axiomatic that evidence of prior crimes is not admissible for the

sole purpose of demonstrating a criminal defendant's propensity to commit

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283

(Pa. Super. 2004)(citation omitted).      However, this rule is not without

exception:

        Evidence may be admissible in certain circumstances where
        it is relevant for some other legitimate purpose and not
        utilized solely to blacken the defendant's character. It is
        well-established that reference to prior criminal activity of
        the accused may be introduced where relevant to some
        purpose other than demonstrating defendant's general
        criminal propensity. Thus, evidence of other crimes may be
        introduced to show[:]

             1) motive; 2) intent; 3) absence of mistake or
             accident; 4) a common scheme or plan; and 5)

                                    -9-
J-S53025-14


            identity. The evidence may also be admissible to
            impeach      the   credibility    of   a  testifying
            defendant; to show that the defendant has used the
            prior bad acts to threaten the victim; and in
            situations where the bad acts were part of a chain or
            sequence of events that formed the history of the
            case and were part of its natural development.

Id. (emphasis added).

      Here, at the beginning of trial, the Commonwealth told the trial court

that it intended to use Appellant’s testimony from an unrelated trial wherein

Appellant admitted to selling marijuana “in the event that [Appellant]

testifie[d] … for impeachment purposes.” N.T., 1/12/213, at 5-6.      In this

case, Appellant testified that an independent third party drug dealer rented

the hotel room where police found Appellant and Crosby.         Id. at 108.

Appellant claimed that the drugs found by police were not his and he did not

intend to sell those drugs.    Id.    The Commonwealth was permitted to

impeach Appellant’s testimony. The fact that counsel for Appellant elicited

the testimony during direct examination, instead of the Commonwealth

cross-examining Appellant with the prior testimony concerning marijuana

sales, is a distinction without a difference.    We discern no error and

Appellant’s second issue is without merit.

      Judgment of sentence affirmed.




                                     - 10 -
J-S53025-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




                          - 11 -
