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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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