J-S74003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SUDEN FOSTER,

                            Appellant                  No. 1693 EDA 2013


         Appeal from the Judgment of Sentence Entered May 17, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000490-2010


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 31, 2014

        Appellant, Suden Foster, appeals from the judgment of sentence of 3

to 6 years’ incarceration.          Appellant challenges the sufficiency of the

evidence, and the admission of expert testimony. Appellant also challenges

the trial court’s denial of his motions for a mistrial following the testimony of

a witness for the Commonwealth, and following a statement made by the

trial court during jury voir dire. We affirm.

        Appellant proceeded to a jury trial on January 29, 2013.       The facts

adduced at trial were as follows:

        This case arose from three narcotics surveillances conducted by
        the Philadelphia Police Department ("PPD") on December 30,
        2013, January 7, 2014, and January 10, 2014 at 4904 Old York
        Road. The first two surveillances were conducted by Philadelphia
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Police Officer Riel Thwaites [] and his partner Officer Young. The
     third surveillance was conducted in conjunction with the
     execution of two search warrants. Testifying for the
     Commonwealth were six police officers, including an expert
     witness, and a detective who provided rebuttal testimony.

            On December 30, 2007[,] at approximately 7:45 p.m.,
     Officers Thwaites and Young directed a confidential informant
     ("C.I.") to purchase narcotics with pre-recorded United States
     currency from a bar called the Sports Den at 4904 Old York
     Road. The C.I. knocked and was admitted by [Appellant].
     Approximately one minute later, the C.I. exited the location, and
     handed over one purple packet to Officer Young. The powder
     inside the packet tested positive for the presence of cocaine.
     [Appellant] then exited the location and used a key to access the
     door to the second floor apartment. Officers Thwaites and
     Young observed five or six people engage in what they believed
     to be narcotics transactions at the location that evening.

            On January 7, 2008 at approximately 7:45 p.m., Officers
     Thwaites and Young returned with the same C.I. The C.I. was
     again searched, given pre-recorded buy money, and directed to
     purchase narcotics from 4904 Old York Road. After the C.I.
     made the purchase, Officer Thwaites followed him to a
     confidential location. The C.I. handed over one purple colored
     packet containing a white powdered substance, which tested
     positive for cocaine. Again, [o]fficers observed five or six people
     engage in what police believed to be narcotics transactions at
     the location.

           On January 10, 2008 at approximately 7:30 p.m., Officers
     Thwaites, Young, Bogan, Sergeant Torpey and other members of
     the PPD[] set up a third surveillance. Officer Thwaites secured
     two search warrants for the first and second floors. Officer
     Young testified that a black Acura Legend, owned by [Appellant],
     drove into the parking lot adjacent to the Sports Den. A man
     exited the vehicle, walked over to the location and was admitted.
     [Appellant] emerged from the bar, examined his car, and
     reentered the building, at which time police executed the search
     warrant for the first floor.       Officer Thwaites knocked and
     announced but there was no answer. Using a ram and a pry tool
     called a [H]all[i]gan, officers breached the door. The door flew
     open and immediately slammed shut again. When the door flew
     open, Officer Thwaites saw [Appellant], who was standing behind
     the bar, turn towards the rear of the property. Police reopened

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     the door and gained entry twenty to thirty seconds later. …
     [Appellant] was not apprehended or seen again until his arrest
     on April 21, 2009.

            Police recovered from the bar area[] eighteen grayish
     packets of cocaine, one bag containing bulk cocaine, one
     sandwich bag of marijuana, another plastic bag of marijuana, six
     yellow packets of marijuana, one pink straw for cutting cocaine,
     one black scale, and an amber pill bottle which contained five
     pills. Officers recovered a Verizon statement, in [Appellant’s]
     name, addressed to 4904 Old York Road, which contained a
     refund check payable to [Appellant]. A Verizon card was also
     recovered, in [Appellant’s] name, addressed to 4904 Old York
     Road, which also contained a refund check payable to
     [Appellant]. Police also recovered a photograph of [Appellant]
     with a small child and a Liberty Travel luggage tag with
     [Appellant’s] name. A Pep Boys bill in [Appellant’s] name was
     also recovered from the first floor. Additionally, four bags of
     new and unused narcotics packaging were found behind the bar.
     Police confiscated $436.00 from the cash register. From the
     second floor apartment, … police recovered another Verizon bill
     in Appellant’s name.        Finally, [Appellant’s] vehicle was
     confiscated.

            A total of 19.07 grams of cocaine and over 7 grams of
     marijuana were recovered. Officer Keys, a narcotics expert,
     testified that: "...the narcotics as well as the packaging, scale,
     [and] the straw [were] possessed with intent to distribute []."

Trial Court Opinion (TCO), 6/10/14, at 3 – 6 (citations to the record

omitted).

     Appellant was convicted of possession with intent to deliver on January

31, 2013. On May 17, 2013, Appellant was sentenced to a term of 3 to 6

years’ incarceration. He filed a timely notice of appeal, as well as a timely

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

     Appellant now presents the following questions for our review:



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            I.     The trial court erred in reading the Commonwealth’s
                   submitted statement of the case to the jury[,] as
                   provided to the trial court by the prosecution[,]
                   because it grossly mischaracterized the evidence.
                   Moreover, a curative instruction was warranted[,]
                   and sought[,] but denied.

            II.    [] The Commonwealth’s use of a drug expert
                   constituted prejudicial error[,] and [] [Appellant’s]
                   request for a mistrial in that regard was improperly
                   denied.

            III.   Officer Thwaites’[s] testimony on cross-examination
                   regarding a phone conversation he had with
                   Appellant was in violation of Pa.R.Crim.P. 573 and
                   [Commonwealth v.] Brady[, 63 S.Ct. 1194
                   (1963),] because it was not turned over to Appellant
                   prior to trial.   The trial court erred in denying
                   Appellant’s motion for mistrial with regard to this
                   issue where[,] even after a sustained objection to
                   the first improper question, the [Commonwealth]
                   followed up with another question about the phone
                   conversation that was grossly improper and
                   prejudicial.

            IV.    [] The evidence presented by the Commonwealth at
                   trial was insufficient as a matter of law to support a
                   guilty verdict on the [possession with intent to
                   deliver] charge.

Appellant’s brief at 11 (unnecessary capitalization omitted).

      For the sake of clarity, we first turn to Appellant’s challenge to the

sufficiency of the evidence. We begin by noting that Appellant concedes: “In

the light most favorable to the Commonwealth, the evidence was sufficient

to establish [Appellant’s] guilt.” Id. at 43. However, Appellant argues, that

“two equally reasonable and mutually inconsistent inferences can be drawn”

from the evidence in the instant case, and “a jury must not be permitted to

guess which inference it will adopt.”      Appellant’s brief at 44 (citations

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omitted).    In presenting this argument, Appellant disregards our well-

established standard of review with regard to sufficiency of the evidence,

which is as follows:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt . . . . When reviewing the sufficiency claim the
      court is required to view the evidence in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted).   On appeal, “we may not weigh the evidence and substitute our

judgment for that of the fact-finder.”         Commonwealth v. Ventrini, 734

A.2d 404, 407 (Pa. Super. 1999) (citations omitted).          Furthermore, we

recognize    that   “the   facts   and    circumstances   established   by   the

Commonwealth need not preclude every possibility of innocence.” Id.

      In the instant case, the police did not seize narcotics from Appellant’s

person.     Consequently, the Commonwealth was required to prove that

Appellant constructively possessed the narcotics.      See Commonwealth v.

Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).           The Commonwealth may

meet its burden of proof “by means of wholly circumstantial evidence.” Id.

at 820.

      Here, the police engaged the assistance of a confidential informant.

The informant was sent, on two separate occasions, to purchase narcotics.

On both occasions, police observed Appellant open the door for the


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informant to enter 4904 Old York Road.          The informant then left a few

minutes later, and turned over cocaine to the police.      The police on both

occasions also observed Appellant admit a number of people to the building.

These people left the building minutes after they entered.

      The police subsequently executed a search warrant at that address,

during which they discovered a large quantity of cocaine and marijuana, as

well as a straw and a scale.      An expert witness for the Commonwealth

testified that the manner in which the narcotics were packaged, as well as

the presence of the scale and straw, indicated that the narcotics were

possessed with the intent to distribute them.

      The narcotics were seized from an area where the police also

discovered personal effects containing Appellant’s name, such as a phone

bill, a Pep Boys bill, and a luggage claim check. The address provided on

the phone bill was 4904 Old York Road. There was a picture of Appellant on

the wall of the room from where the contraband was seized.           When the

police executed the search warrant, Appellant fled from the premises (while

the two other people who were present did not). Moreover, at the time the

warrant was executed, Appellant was standing behind the bar, where the

narcotics were recovered.      Having reviewed the record before us, we

conclude that the evidence was sufficient to allow the jury to find that

Appellant constructively possessed cocaine with the intent to deliver it.

      We now turn to Appellant’s claim that a mistrial was required after the

trial court read a memorandum prepared by the Commonwealth to the jury

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during voir dire that stated, “after he [Appellant] sold the cocaine….”1

Appellant’s brief at 15.       Appellant argues that he was prejudiced by this

statement because it “gave the jury… the impression… it was a foregone

conclusion that Appellant sold the drugs.” Id. Appellant filed a motion for

extraordinary relief, seeking a mistrial, which the trial court denied.

       We review the denial of motions for mistrial under the following

standard:

       The denial of a motion for a mistrial is assessed on appellate
       review according to an abuse of discretion standard. The central
       tasks confronting the trial court upon the making of the motion
       were to determine whether misconduct or prejudicial error
       actually occurred, and if so, to assess the degree of any resulting
       prejudice.

Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007)

(quoting Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa. 2006)

(internal citation omitted)). Moreover,

____________________________________________


1
   Appellant appears to raise an additional allegation of prosecutorial
misconduct with regard to the memorandum the Commonwealth prepared.
During a sidebar discussion between counsel and the judge regarding the
admissibility of expert testimony, counsel for the Commonwealth stated that
“There are no buys in this case whatsoever observed.” N.T., 1/29/13, at 77.
Appellant claims that this statement contradicts the Commonwealth’s
memorandum. Notwithstanding Appellant’s claim, these statements are not
irreconcilable. As noted infra, the Commonwealth was not required to offer
eyewitness testimony regarding a transaction, as they were permitted to
establish their burden of proof through wholly circumstantial evidence. The
mere fact that the police did not observe Appellant selling narcotics did not
bar the Commonwealth from introducing evidence, and arguing, that
Appellant sold narcotics. In fact, this was exactly what the Commonwealth
was required to prove.



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      [w]hether to grant the extreme remedy of a mistrial        is a matter
      falling into the discretion of the trial court. “A trial   court need
      only grant a mistrial where the alleged prejudicial        event may
      reasonably be said to deprive the defendant of             a fair and
      impartial trial.”

Commonwealth v. Boczkowski, 846 A.2d 75, 95 (Pa. 2004) (quoting

Commonwealth v. Jones, 668 A.2d 491, 503 (Pa. 1995)).

      Any potential prejudice incurred by the trial court’s brief statement

during voir dire was mitigated by the court’s much lengthier opening

instructions to the jury regarding Appellant’s presumption of innocence:

      Please remember that the charges that are brought against
      [Appellant] are accusations. They are not proof that [Appellant]
      is guilty.

            Remember that a fundamental [principle] of our law is that
      you must presume [Appellant] is innocent. This means you are
      to accept that the mere fact he has been charged with this crime
      doesn’t mean he’s guilty of it. He begins the case with a clean
      slate and has no obligation to prove his innocence.

            It is always the Commonwealth that bears the burden of
      convincing you, the jurors, that [Appellant][,] [who] is presumed
      innocent as the trial begins and as the trial progresses, is guilty
      of the crimes for which he’s charged.

            To succeed, the Commonwealth must convince you that
      based on a fair consideration of all the evidence that will be
      offered, each element of the offense charged has been proven
      beyond a reasonable doubt.

N.T., 1/29/13, at 5 – 6. In light of these opening instructions by the court,

Appellant has failed to establish that the trial court’s brief statement during

jury voir dire so deprived him of a fair trial that the extreme remedy of a

mistrial was warranted. Accordingly, we conclude that the trial court’s denial

of Appellant’s motion for mistrial was not an abuse of discretion.



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      Next, we address Appellant’s claim regarding the admissibility of

expert testimony offered by the Commonwealth.          Specifically, Appellant

argues that such testimony was improper and cumulative. In support of this

claim, Appellant relies on this Court’s holdings in Commonwealth v.

Carter, 589 A.2d 1133 (Pa. Super. 1991), and Commonwealth v.

Montavo, 653 A.2d 770 (Pa. Super. 1995). In both Carter and Montavo,

this Court held that where police observe a narcotics sale, expert testimony

“concerning whether the facts surrounding the possession of controlled

substances were consistent with an intent to deliver” is inadmissible.

Carter, 589 A.2d at 619 (internal citation omitted). Where an eyewitness

can testify that a transaction occurred, a factfinder does not require special

knowledge to reach the conclusion that the transaction did in fact occur. Id.

      The instant case is easily distinguished from Carter and Montavo. As

Appellant concedes, “the [confidential informant] did not testify, nor did

anyone testify that [A]ppellant was seen possessing or selling drugs.”

Appellant’s brief at 38.   Here, it is uncontroverted that the police did not

observe Appellant engage in a narcotics sale. As such, it was not error for

the trial court to permit the Commonwealth to introduce the testimony of an

expert witness.

      Finally, we turn to Appellant’s claim that the trial court erred in

denying a mistrial when a witness testified about a phone call with Appellant.

On cross-examination, counsel for Appellant elicited testimony from a police

officer indicating that the officer had spoken with Appellant on the telephone

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prior to Appellant’s arrest.2 Subsequently, on redirect examination, counsel

for the Commonwealth asked this witness about speaking to Appellant via

telephone.      Counsel for Appellant objected.      Inexplicably, the sidebar

discussion regarding this objection was not transcribed. Therefore, it is not

part of the record before this Court on appeal, and we do not know the basis

of Appellant’s objection to this testimony.        The trial court ultimately

sustained Appellant’s objection to the question, and instructed the jury not

to consider it, but denied Appellant’s motion for a mistrial.3

       Appellant appears to argue that a mistrial was warranted because the

Commonwealth committed a pretrial discovery violation when it failed to

disclose the existence of this phone call to Appellant. Specifically, Appellant
____________________________________________


2
  Appellant states in his brief that his counsel objected to this testimony
during cross-examination, and that the objection was sustained. Appellant’s
brief at 33. We have reviewed the notes of testimony, and the record does
not reflect that Appellant’s counsel objected to this testimony during his
cross-examination of the witness who testified about the phone call. N.T.,
1/29/13, at 56 – 59. Our review of the record indicates that counsel for
Appellant objected to this testimony for the first time during the
Commonwealth’s redirect examination. Id. at 63. Moreover, the trial court
did not issue a ruling regarding the admissibility of this testimony until
Appellant’s counsel objected during the Commonwealth’s redirect
examination. Appellant’s contention that the Commonwealth attempted to
solicit testimony that the trial court had already deemed inadmissible is not
supported by the record.
3
  The failure to object to a curative instruction constitutes a waiver of the
claim that that instruction was insufficient. Commonwealth v. Hodge, 411
A. 2d 503, 509 n. 8 (Pa. Super. 1979). Given that the sidebar regarding this
issue was not transcribed, the record does not reflect whether Appellant
objected to the curative instruction admonishing the jury not to consider the
Commonwealth’s question.



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alleges that the failure to disclose the existence of this phone call violated

Pa.R.Crim.P. 573, which states in applicable part,

      (B) Disclosure by the Commonwealth.

      (1) Mandatory. In all court cases, on request by the defendant,
      and subject to any protective order which the Commonwealth
      might obtain under this rule, the Commonwealth shall disclose to
      the defendant's attorney all of the following requested items or
      information, provided they are material to the instant case. The
      Commonwealth shall, when applicable, permit the defendant's
      attorney to inspect and copy or photograph such items.

      (a) Any evidence favorable to the accused that is material either
      to guilt or to punishment, and is within the possession or control
      of the attorney for the Commonwealth.

      In addition, Appellant argues that the Commonwealth’s failure to

disclose the existence of the phone call violated his federal constitutional

rights as detailed in Brady, in which the United States Supreme Court held

that “the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.”   Brady, 63 S.Ct. at 1196-1197.          With regard to Brady

violations, the Pennsylvania Supreme Court has held:

      To prove a Brady violation, Appellant must demonstrate that:
      (1) the prosecution concealed evidence; (2) which evidence was
      either exculpatory or impeachment evidence favorable to him
      and; (3) he was prejudiced by the concealment. In order to
      prove prejudice, Appellant must show a “reasonable probability
      that, had the evidence been disclosed to the defense, the result
      of the proceeding would have been different.” Stated differently,
      the undisclosed evidence must be “material to guilt or
      punishment.” Further, “[i]mpeachment evidence which goes to
      the credibility of a primary witness against the accused is critical
      evidence and it is material to the case whether that evidence is

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      merely a promise or an understanding between the prosecution
      and the witness.” … Finally, we note that “[t]here is no Brady
      violation when the appellant knew, or with reasonable diligence,
      could have uncovered the evidence in question.”

Commonwealth v. Bomar, 2014 WL 6608963, at *5 (Pa. Nov. 21, 2014)

(internal citations omitted).

       Appellant claims that he could not have uncovered the evidence in

question with reasonable diligence. However, the evidence in question is a

phone call to which Appellant was a party. It is unclear how Appellant could

not have known about a conversation in which he participated. Moreover,

nothing in the record before us suggests that counsel for the Commonwealth

knew about this phone conversation before counsel for Appellant solicited

testimony about it during trial.   Accordingly, we conclude this claim is

without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2014




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