J-S56009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

LANDARE JELMAIK HINES,

                            Appellant                    No. 1730 MDA 2015


         Appeal from the Judgment of Sentence Entered May 21, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000641-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED OCTOBER 04, 2016

        Appellant, Landare Jelmaik Hines, appeals from the judgment of

sentence of an aggregate term of 8 to 16 years’ incarceration, imposed after

a jury convicted him of various drug-related offenses. After careful review,

we affirm.

        Briefly, Appellant’s convictions stemmed from evidence that he and

two women, Tiffany Ingram and Sarah Frank, conspired to sell heroin out of

a residence at 10 Fredericksburg Court in State College, Pennsylvania.

During an investigation of these individuals in March of 2014, Sarah Frank

delivered heroin to a confidential informant on two occasions, and to an

undercover detective on a third.           Based on Frank’s deliveries, as well as

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*
    Former Justice specially assigned to the Superior Court.
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additional information acquired by police during the investigation, a search

warrant was obtained for Ingram’s residence. On March 28, 2014, when the

search warrant was executed, police discovered Appellant inside Ingram’s

home.    Appellant was taken into custody and searched, revealing a small

amount of marijuana and a key to a safe where narcotics were found.         A

search of Ingram’s residence revealed narcotics, drug paraphernalia, and

evidence indicating that Appellant was residing there.

       Following Appellant’s arrest, he was charged with various drug-related

offenses.   On December 16, 2014, Appellant filed a pretrial motion to

suppress the evidence recovered from his person after he was detained and

searched.     Following a hearing on that motion, the court denied it.

Appellant’s jury trial commenced in March of 2015, and at the close of that

proceeding, the jury convicted him of possession with intent to deliver

(PWID), 35 P.S. § 780-113(a)(30); possession of a controlled substance, 35

P.S. § 780-113(a)(16); possession of a small amount of marijuana for

personal use, 35 P.S. § 780-113(a)(31); possession of drug paraphernalia,

35 P.S. § 780-113(a)(32); and conspiracy to commit PWID, 18 Pa.C.S. §

903.

       On May 21, 2015, Appellant was sentenced to an aggregate term of 8

to 16 years’ incarceration. He filed a timely post-sentence motion, which the

trial court denied after conducting a hearing. Appellant filed a timely notice

of appeal, and also timely complied with the court’s order to file a Pa.R.A.P.




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1925(b) concise statement of errors complained of on appeal.        Herein, he

presents four issues for our review:

      I. Did the trial court err in granting the Commonwealth’s request
      to prohibit counsel for [Appellant] from using an analogy of
      reasonable doubt during closing argument?

      II. Did the trial court err in refusing to grant a mistrial based
      upon statements made by the prosecutor amounting to an
      improper shifting of the burden [of proof], as well as statements
      made by the Commonwealth directed towards counsel for
      [Appellant]?

      III. Did the trial court err in admitting unrelated robbery
      evidence at the time of [Appellant’s] trial?

      IV. Did the trial court err in denying [Appellant’s] motion to
      suppress on the basis that, first, [Appellant] was unlawfully
      seized, and secondly, the search of [Appellant’s] person was
      unconstitutional?

Appellant’s Brief at 11 (unnecessary capitalization and emphasis omitted).

      Appellant’s first issue challenges the trial court’s decision to preclude

defense counsel from presenting, in closing arguments, an analogy to

explain reasonable doubt.    Appellant does not set forth, in his appellate

brief, the content of the proposed analogy that the court refused to permit.

Rather, he simply refers this Court to his post-sentence motion, where he

set forth the content of the proposed analogy, as follows:

      Some of you jurors may have children or grandchildren who like
      to ice skate. If on one occasion you go to the local pond and
      there are a number of children skating on the pond and you see
      no cracks in the ice, would you have any hesitation or doubt
      about allowing your child to skate on the ice[?] If you go back
      to the pond two weeks later and there are fewer children on the
      pond and you see some small cracks on the ice, would any of
      you have a hesitation to allow your child to skate on the ice[?]
      If two weeks later you went back to the pond and there were no

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      children skating on the pond and there were numerous cracks in
      the ice, would any of you have any hesitation to allow your child
      to skate on the ice[?] Now let’s look for cracks in the
      Commonwealth’s case.

Post-Sentence Motion, 5/29/15, at 4.

      When      defense   counsel   began   stating   this   analogy   in   closing

arguments, the Commonwealth asked for a side-bar, and objected to the

analogy on the basis that it could “provoke[] fear” in the minds of the jurors.

N.T. Trial, 3/31/15, at 38.         The trial court ultimately sustained the

Commonwealth’s objection and defense counsel was not permitted to              use

the analogy. Id. at 39. Defense counsel then continued to address the jury

as follows:

      [Defense Counsel]: As far as reasonable doubt, I’m going to let
      the Judge again read the instructions to you, but what I want to
      tell you is that, again, [“]could have,[”] [“]might have,[”]
      [“]possibly[”] isn’t proof beyond a reasonable doubt by any
      stretch of the imagination.

             Again, I gave you sort of an analogy when I was in my
      opening [statement] that all you have to do is hesitate, hesitate
      before you act in a matter of importance in your own affairs.
      That’s reasonable doubt, because if you go back to the jury room
      and you have this hesitation, then your obligation and your duty
      is to acquit [Appellant].

Id. at 39-40.

      Now, on appeal, Appellant challenges the court’s ruling precluding him

from presenting the ice skating analogy, relying on this Court’s decision in

Commonwealth v. Jones, 858 A.2d 1198 (Pa. Super. 2004), and our

Supreme Court’s decision in Commonwealth v. Malone, 47 A.2d 445 (Pa.

1946).    As Appellant acknowledges, both of those cases discuss the


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propriety of the trial court’s using illustrations to explain legal concepts in

instructing the jury and, thus, are inapplicable on their face.      Appellant

argues, however, that because the court is permitted to use illustrations and

analogies in instructing the jury, “[t]here is no legitimate reason … why trial

counsel should be precluded from doing the same.” Appellant’s Brief at 21.

      Appellant’s underdeveloped argument is unconvincing.        Notably, the

trial court provided a jury instruction regarding reasonable doubt that

Appellant did not challenge below, and does not attack herein. Additionally,

as evident by the passage of Appellant’s closing argument set forth supra,

he was not wholly precluded from explaining reasonable doubt to the jury.

Instead, the court only barred Appellant from using a specific analogy that

invited jurors to imagine their children or grandchildren walking on a frozen

pond with cracked ice. Appellant’s argument that his counsel should have

been permitted to use this analogy simply because a trial court is allowed to

use illustrations in instructing the jury does not convince us the court abused

its discretion.

      In Appellant’s next issue, he argues that the court erred by denying

his objections, and his request for a mistrial, based on certain improper

comments made by the Commonwealth during closing arguments.               This

Court has explained:

         The trial court is vested with discretion to grant a mistrial
         whenever the alleged prejudicial event may reasonably be
         said to deprive the defendant of a fair and impartial trial.
         In making its determination, the court must discern
         whether misconduct or prejudicial error actually occurred,

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        and if so, ... assess the degree of any resulting prejudice.
        Our review of the resulting order is constrained to
        determining whether the court abused its discretion.
        Judicial discretion requires action in conformity with [the]
        law on facts and circumstances before the trial court after
        hearing and consideration. Consequently, the court abuses
        its discretion if, in resolving the issue for decision, it
        misapplies the law or exercises its discretion in a manner
        lacking reason.

     Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super.
     2009) (quoting Commonwealth v. Lettau, 955 A.2d 360, 363
     (Pa. Super. 2008) (internal citations and quotations omitted)).

     “The remedy of a mistrial is an extreme remedy required only
     when an incident is of such a nature that its unavoidable effect is
     to deprive the appellant of a fair and impartial tribunal.” Judy,
     978 A.2d at 1019 (citations omitted).

Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010).

     In this case, Appellant cites three separate instances of allegedly

improper comments by the prosecutor during his closing argument.           First,

Appellant takes issue with the prosecutor’s suggesting that defense counsel

deliberately asked Sarah Frank “compound questions” to confuse Frank and

make her seem incredible. See N.T. Trial, 3/31/15, at 74. Appellant also

challenges the prosecutor’s statement: “You don’t allow [defense counsel] to

come up here and talk to you about random facts, out of sequence, in an

attempt to confuse you, because really that’s all that was.”      Id. at 70.

Appellant avers that these comments by the Commonwealth improperly

“question[ed] the veracity of [defense] counsel” and were not appropriate in

closing arguments. Appellant’s Brief at 23.

     However, Appellant does not develop any meaningful argument that

these comments, alone, deprived him of a fair trial.    Rather, he contends

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that these remarks, combined with another statement by the prosecutor,

necessitated a mistrial. In that third comment, the prosecutor stated, “Why

didn’t [defense counsel] show you that text message[?]”               N.T. Trial,

3/31/15, at 93.    According to Appellant, this remark by the prosecutor

impermissibly shifted the burden of proof to the defense, and raised an

“inference[] that counsel for [Appellant] was attempting to hide something

and that [the defense] had an obligation to present certain documents to the

jury[, which was] prejudicial to [Appellant].”       Appellant’s Brief at 24.

Appellant asserts that “[t]his statement made by the [prosecutor], coupled

with the various references to counsel for [Appellant,]” discussed supra,

“should have resulted in the [c]ourt[’s] declaring a mistrial.” Id.

      We disagree. Notably, Appellant completely omits the fact that, after

the trial court denied his motion for a mistrial, it provided the jury with a

cautionary instruction regarding the Commonwealth’s burden of proof.

Specifically, shortly after the Commonwealth’s allegedly burden-shifting

remark, the court stated to the jury: “I just want to point out to you [that]

although [the prosecutor is] making an argument, you must always

remember the burden is always on the Commonwealth. It does not shift to

the defense at any point to put in evidence or do anything. The burden is on

the Commonwealth.” N.T. Trial, 3/31/15, at 96-97. Appellant did not argue

at trial, and does not assert on appeal, that the court’s cautionary instruction

was inadequate to cure the purported prejudice he suffered from the

prosecutor’s challenged comment.       We “presume[] that juries follow the

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court's instructions as to the applicable law.” Commonwealth v. Hawkins,

701 A.2d 492, 503 (Pa. 1997) (citation omitted). Accordingly, we conclude

that Appellant’s second issue does not warrant a new trial. See id. (finding

that   the   prosecutor’s   ostensibly   burden-shifting   comment   in   closing

argument did not warrant a mistrial, as “any prejudicial effect from the

prosecutor's statement was cured by the trial court's general cautionary

instruction to the jury following closing arguments that none of the closing

arguments were evidence and that the Commonwealth always bore the

burden of proof and that the defendant did not have to prove that he is not

guilty”).

       In Appellant’s third issue, he challenges certain testimony admitted by

the Commonwealth. See Appellant’s Brief at 24-25. However, at the close

of his argument, Appellant acknowledges that a “limiting instruction” was

provided by the court. Id. at 25. He then states: “Given the fact that there

was a limiting instruction and considering applicable cases, your undersigned

is withdrawing this issue.” Id. Accordingly, we do not address this claim.

       In Appellant’s last issue, he challenges the trial court’s denial of his

motion to suppress evidence recovered after he was arrested and searched

during the execution of the search warrant at Tiffany Ingram’s residence.

Our standard of review for denial of a suppression motion is as follows:

       In reviewing an order from a suppression court, we consider the
       Commonwealth’s evidence, and only so much of the defendant’s
       evidence as remains uncontradicted. We accept the suppression
       court’s factual findings which are supported by the evidence and


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      reverse only when the court draws erroneous conclusions from
      those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      Before addressing Appellant’s specific arguments, we summarize the

pertinent testimony presented at the suppression hearing. There, Detective

Donald    Paul   of    the     State    College   Police   Department   was   the

Commonwealth’s sole witness.           Detective Paul testified regarding how his

investigation of Sarah Frank, Tiffany Ingram, and Appellant culminated in

the detective’s obtaining a search warrant for the residence at 10

Fredericksburg Court.        He explained that beginning in 2013, police began

investigating Frank and Ingram after receiving information that the women

were selling heroin from that residence. N.T. Suppression Hearing, 2/17/15,

at 7-8.   During the investigation, police began to suspect “that there was

[also] a male source providing [the] heroin out of that residence, … not just

Tiffany Ingram.”      Id. at 10.   Detective Paul testified that he conducted a

“background investigation” of Ingram, during which he discovered that she

associated with Appellant. Id. at 9. Detective Paul obtained a photograph

of Appellant, and also ran a background check on Appellant. Id. at 10. The

background check revealed that Appellant had an outstanding warrant for

his arrest for a 2013 parole violation. Id.

      Subsequently, Detective Paul obtained a search warrant for 10

Fredericksburg Court, and police executed the warrant on March 28, 2014.

Id. at 11. Detective Paul testified that upon entering the residence, he and

Sergeant Tyler Jolley “started heading up the stairs to the second floor

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where [they] encountered [Appellant] on a landing just at the top of the

second floor.” Id. at 13. Detective Paul stated that Appellant “was taken

into custody right there at the top of the stairs.” Id. The detective went on

to describe an initial search of the residence, which revealed Tiffany Ingram

in the master bedroom, men’s clothing in a closet in the master bedroom,

and marijuana and drug paraphernalia in plain-view in that bedroom. Id. at

14.   Ingram and Appellant were then searched, and on Appellant’s person

police discovered a small amount of marijuana and the key to a safe. Id. at

15. Officers searched the safe, which was found under the mattress in the

master bedroom. Id. Inside the safe, they discovered a large quantity of

heroin. Id. Officers also found a large quantity of cash, and documents in

Appellant’s name, in the closet where the men’s clothing was stored. Id. at

16.

      Presently, Appellant concedes that the search warrant for the

residence was valid, and that there was an active warrant out for his arrest

when the police searched the residence on March 28, 2014. Nevertheless,

he argues, inter alia, that the suppression court erred by concluding that his

arrest was legal because of his outstanding arrest warrant where the

Commonwealth did not present the testimony of Sergeant Jolley, the officer

who allegedly arrested Appellant. According to Appellant, because Sergeant

Jolley did not take the stand, the Commonwealth did not prove that that

officer knew about Appellant’s arrest warrant prior to his placing Appellant in

custody. Appellant further argues that it cannot be inferred that Sergeant

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Jolley shared Detective Paul’s knowledge of the arrest warrant under the

‘collective knowledge’ doctrine.         See Appellant’s Brief at 30 (relying on

Commonwealth v. Yong, 120 A.3d 299 (Pa. Super. 2015), to argue that

the collective knowledge doctrine applies only where there is evidence of

explicit communication between the officer with knowledge to support

probable cause to arrest (here, Detective Paul) and the arresting officer

(here, Sergeant Jolley)).1

       Preliminarily, our review of the record demonstrates that Appellant did

not raise, before the suppression/trial court, his argument that Sergeant

Jolley lacked probable cause to arrest him because the officer did not,

himself, know about Appellant’s active arrest warrant. We acknowledge that

the record of the suppression hearing indicates that defense counsel only

became aware of that warrant for Appellant’s arrest during Detective Paul’s

testimony. Thus, it is acceptable that Appellant did not assert the challenge
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1
  We note that our Supreme Court granted the Commonwealth’s petition for
allowance of appeal in Yong, stating the issue as follows:
       Did the Superior Court—in contravention of the United States
       Supreme Court precedent and overwhelming supporting
       authority from this Court, the Superior Court itself, and virtually
       every federal and state court—err in holding that the Fourth
       Amendment does not permit a member of a close group of
       officers working as a team to act on the collective knowledge of
       that team, absent a directive or instruction issued by an officer
       who possesses probable cause?

Commonwealth v. Yong, 137 A.3d 573 (Pa. 2016).




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to his arrest based on Sergeant Jolley’s knowledge (or lack thereof) in his

written motion to suppress filed on December 16, 2014. We also do not find

waiver based on defense counsel’s failure to orally raise this claim at the

suppression hearing, given that counsel had only then discovered that

Appellant had an active arrest warrant.

      However, we cannot overlook Appellant’s failure to present his claim

regarding Sergeant Jolley’s alleged lack of knowledge at some point after the

suppression hearing, during trial, following his conviction, or in his post-

sentence motion.    Notably, after the suppression hearing in February of

2015, Appellant’s counsel filed an additional pretrial motion on March 5,

2015, requesting that the court reconsider its denial of a different

suppression issue raised in his December 16, 2014 suppression motion.       In

that March 5th motion, Appellant did not challenge the legality of his arrest

based on Sergeant Jolley’s lack of knowledge of the arrest warrant.

Appellant also failed to raise this claim in his post-sentence motion. Therein,

Appellant challenged the court’s denial of his motion to suppress by simply

‘incorporating’ the arguments set forth in his December 16, 2014 motion to

suppress, which, again, made no mention of Sergeant Jolley’s purported lack

of knowledge of Appellant’s arrest warrant.       See Post-Sentence Motion,

5/29/15, at 5.     Appellant also did not mention any issue pertaining to

Sergeant Jolley’s knowledge at the hearing on his post-sentence motion.

Because Appellant did not present the specific argument he raises herein to

the suppression/trial court, we conclude that it is not preserved for our

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review.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).

       We also point out that Appellant’s Rule 1925(b) statement presented

his suppression claim as follows: “The [t]rial [c]ourt erred in denying

[Appellant’s] [m]otion to [s]uppress.”             Pa.R.A.P. 1925(b) Statement,

10/28/15, at 2. This boilerplate claim is insufficient to preserve the specific

suppression argument Appellant now presents on appeal; therefore, we

would deem Appellant’s claim waived on this basis, as well. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).2
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2
  In any event, we would deem Appellant’s suppression issue meritless.
Appellant’s entire argument is premised on the fact that Sergeant Jolley
arrested him.     We acknowledge that the suppression court at least
suggested this finding of fact in its opinion denying Appellant’s motion to
suppress. See Suppression Court Opinion, 2/26/15, at 5 (stating that
“Detective Paul was not the officer who actually placed [Appellant] into
custody”). However, limiting our review to the record of the suppression
hearing, we cannot find support for that factual finding. See In re L.J., 79
A.3d 1073, 1087 (Pa. 2013) (holding that an appellate court’s scope of
review from a suppression ruling is limited to the evidentiary record that was
created at the suppression hearing). As stated supra, at the suppression
hearing, Detective Paul testified that upon entering the residence, he and
Sergeant Jolley went up the stairs together and discovered Appellant at the
top. N.T. Suppression Hearing at 13. Detective Paul then testified that,
“[Appellant] was taken into custody right there at the top of the stairs. I
then entered the master bedroom where Tiffany Ingram was laying on the
bed….”    Id.    This testimony by the detective was the only evidence
pertaining to the moment of Appellant’s arrest, and it is unclear regarding
which officer placed Appellant in custody.          Indeed, Detective Paul’s
testimony suggests that Appellant’s arrest was effectuated by both him and
Sergeant Jolley. Thus, because the suppression record does not support the
court’s conclusion that Sergeant Jolley arrested Appellant, we would deem
(Footnote Continued Next Page)


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      Because Appellant has waived his challenge to the suppression court’s

determination that the outstanding warrant for Appellant’s arrest validated

his arrest and subsequent search, we affirm the suppression court’s decision

in that regard.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




                       _______________________
(Footnote Continued)

meritless Appellant’s challenge to the legality of his arrest based on what
Sergeant Jolley did (or did not) know about the active warrant for
Appellant’s arrest.




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