J-S69036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR LYONS                                 :
                                               :
                       Appellant               :   No. 3406 EDA 2018

        Appeal from the Judgment of Sentence Entered November 1, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004139-2014


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                  Filed: March 20, 2020

        Appellant, Omar Lyons, appeals from the judgment of sentence imposed

following his non-jury trial conviction of possession with intent to deliver a

controlled substance (PWID), possession of a controlled substance, possession

of drug paraphernalia, and possession of marijuana.1 We affirm.

        On November 27, 2013, two Philadelphia police officers were patrolling

in a marked vehicle near 24th Street and Lehigh Avenue.          As the officers

turned onto 24th Street, they observed a man, later identified as a Mr. Corley,

leaning into a vehicle with cash in his hand. Upon noticing the officers, Mr.

Corley dropped the cash into the vehicle and stepped backwards. The officers


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S. § 780-
113(a)(32), and 35 P.S. § 780-113(a)(31), respectively.
J-S69036-19



frisked Mr. Corley and recovered fourteen packets of heroin stamped “Killer”

and a pocketknife.

      The officers asked Appellant to exit the vehicle and whether he had any

weapons. Appellant stated that he did not have any firearms but that there

was some marijuana in the armrest. The officers arrested Appellant and found

eleven packets of heroin, also stamped “Killer,” and $743 in cash on

Appellant’s person. The woman who owned the car Appellant was seated in

then arrived on the scene and gave the officers consent to search the vehicle.

During their search of the vehicle, the officers recovered two sandwich bags

containing marijuana, two boxes of brand new glass jars and bags containing

the corresponding lids, an empty magnetic box commonly used in drug

trafficking, and a $100 bill that had been dropped in the vehicle by Mr. Corley.

      Appellant was arrested and charged with PWID, possession of a

controlled substance, and possession of drug paraphernalia.           After the

preliminary hearing, the charges were held for trial, and the Commonwealth

filed an information adding the possession of marijuana charge on April 15,

2014. Appellant then filed a motion to suppress on May 20, 2014. However,

due to numerous continuances granted at Appellant’s request, further

proceedings in this case were delayed for more than three years. Ultimately,

on September 28, 2017, Appellant’s counsel filed a motion to withdraw citing

an irreconcilable breakdown in communication and Appellant’s notification to

counsel that “he is no longer in need of [his counsel’s] legal services.” Motion




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to Withdraw, 9/28/17, ¶4. The court granted the motion and appointed the

Defender Association of Philadelphia to represent Appellant.

       On December 14, 2017, a hearing was conducted on the motion to

suppress. At the conclusion of the hearing, the suppression court denied the

motion. Appellant then filed a motion to reconsider the order denying the

suppression motion; after hearing argument on the motion to reconsider on

July 23, 2018, the trial court orally denied the motion.2 N.T., 7/23/18, at 29-

32. The trial court then inquired whether Appellant was ready to continue to

a waiver trial. Appellant’s counsel then indicated that Appellant expressed a

desire for Mr. Corley to testify for the defense and sought an adjournment to

locate Mr. Corley. Id. at 32-33. The trial court stated that it would not grant

a continuance owing to the extensive delays already in prosecuting the case

and provided Appellant with the choice of invoking his right to a trial by jury

or proceeding directly with a waiver trial. Id. at 33-34.

       During his colloquy on the waiver of right to trial by jury, Appellant

asserted that his appointed attorney from the Defender Association had a

conflict of interest based upon the Defender Association’s prior representation

of Mr. Corley in a case related to the same incident. Id. at 39-40. Appellant’s


____________________________________________


2 The judge who ruled on Appellant’s suppression motion retired after the
December 14, 2017 hearing, and a different judge heard Appellant’s motion
to reconsider the order denying the suppression motion and presided over
Appellant’s trial. In this memorandum, we refer to the judge who ruled initially
on the suppression motion as the “suppression court” and the judge who heard
the motion to reconsider and conducted Appellant’s trial as the “trial court.”

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counsel and the Commonwealth’s attorney explained that, while the Defender

Association did represent the purchaser, the purchaser’s motion to suppress

was granted in 2014 and the charges against him were dropped before the

Defender Association was appointed to represent Appellant in 2017. Id. at

40-41. Based upon this fact and the representation of Appellant’s counsel

that he did not believe that he had a conflict of interest, the trial court stated

that it did not discern a conflict. Id. at 42. Appellant ultimately agreed to

waive his right to a jury trial and completed a written waiver form. Id. at 43-

48; Waiver of Jury Trial Form, 7/23/18.

       At the conclusion of trial, the trial court found Appellant guilty of all

charged offenses. On November 1, 2018, the trial court sentenced Appellant

to a three-to-six year term of imprisonment followed by a consecutive five-

year probationary period on the PWID charge. The possession of a controlled

substance offense merged with PWID, and no further penalty was imposed on

the other two charges. Appellant filed a timely notice of appeal.3

       Appellant raises the following issues on appeal:

____________________________________________


3 The Defender Association filed a statement of errors complained of on appeal
on behalf of Appellant on January 25, 2019. The Defender Association also
moved to withdraw as counsel for Appellant at that time based upon its
determination that Appellant had a colorable claim of ineffective assistance
and trial court error based upon the Association’s conflict of interest related
to representation of Mr. Corley. The trial court granted the motion, appointed
Appellant’s current counsel, and granted new counsel additional time to file a
concise statement. Appellant’s current counsel filed a supplemental concise
statement on March 20, 2019. The trial court filed its opinion on May 16,
2019.

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         1) Is it meritorious and apparent on the record that trial counsel
         was ineffective for failing to call the alleged buyer at the motion
         to suppress evidence and at trial, due to a conflict of interest
         created by trial counsel’s dual representation of the Appellant and
         the alleged buyer?

         2) Did the suppression court err in denying the motion to suppress
         evidence because the evidence was seized after the Appellant was
         stopped, detained, searched and arrested and after the
         Appellant’s vehicle was stopped and searched in the absence of
         reasonable suspicion or probable cause?

         3) Did the trial court err in permitting the introduction into
         evidence statements that were made by the alleged buyer that
         incriminated Appellant, to include statements indicating that the
         Appellant has sold drugs to the alleged buyer, as these statements
         were inadmissible hearsay, unduly prejudicial, and not subject to
         any hearsay exception?

         4) Did the trial court err in not removing the Defender Association
         as the Appellant’s counsel since the Defender Association had a
         conflict of interest requiring the appointment of new counsel for
         the Appellant[?] Specifically, prior to being appointed to represent
         the Appellant, the Defender Association represented the alleged
         buyer at a suppression motion, after which suppression was
         granted and the alleged buyer was eventually discharged; this
         prior representation created a conflict of interest which prevented
         Appellant’s counsel from calling the alleged buyer as a witness in
         a manner free from conflicting loyalties between the past and
         present clients[.]

Appellant’s Brief at 8.

         Appellant first argues that his trial counsel, the Defender Association,

provided ineffective assistance of counsel based upon the fact that he “failed

to call/would not call” Mr. Corley to testify at the suppression hearing or at

trial.    Id. at 18.   Appellant attributes this to the fact that the Defender

Association previously represented Mr. Corley in his successful suppression

motion, resulting in the charges being dropped against Mr. Corley. Appellant



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asserts that Mr. Corley would have contradicted the testimony of the arresting

officer and therefore would have changed the outcome of the case.

      Appellant’s ineffective assistance is not cognizable on direct appeal and

must be deferred to collateral review under the Post Conviction Review Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. See Commonwealth v. Holmes, 79 A.3d

562, 576 (Pa. 2013) (stating that, except in limited, identified circumstances,

“claims of ineffective assistance of counsel are to be deferred to PCRA

review”); Commonwealth v. Hopkins, ___ A.3d ___, 2020 PA Super 25,

*11 (February 7, 2020) (same). Three exceptions have been recognized to

the general rule that ineffective assistance claims may not be brought in a

direct appeal:   (1) “where a discrete claim (or claims) of trial counsel

ineffectiveness is apparent from the record and meritorious to the extent that

immediate consideration best serves the interests of justice”; (2) where the

defendant shows good cause and expressly waives his entitlement to PCRA

review before the trial court; and (3) where the defendant is statutorily

ineligible for PCRA review, such as in cases where the defendant’s only

sentence was to pay a fine. Commonwealth v. Delgros, 183 A.3d 352, 360-

61 (Pa. 2018); Holmes, 79 A.3d at 563-64.

      None of these exceptions are present here. With respect to the first

exception, the grounds for direct review must be raised in a post-verdict

motion to allow the trial court to exercise discretion to consider such a claim.

Holmes, 79 A.3d at 577. Appellant did not file a post-verdict motion in this

matter. Appellant likewise does not fall within the second exception because,

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in such cases, the trial court may only consider claims of ineffective assistance

upon good cause shown to the trial court and where the defendant knowingly

and expressly waives his entitlement to PCRA review before that court.

Delgros, 183 A.3d at 360; Holmes, 79 A.3d at 564, 578. Appellant did not

allege good cause or waive his right to PCRA review before the trial court.

Finally, Appellant has not demonstrated that he would be ineligible for PCRA

review, nor do we see any basis for concluding so. Delgros, 183 A.3d at 361;

see also 42 Pa.C.S. § 9543 (setting forth eligibility requirements for PCRA

relief).   Accordingly, we may not address the ineffective assistance claim

raised in Appellant’s first issue.

       In his second issue, Appellant argues that the suppression court erred

by denying his suppression motion because the officers lacked probable cause

or reasonable suspicion to detain and search him.       Appellant asserts that,

owing to the fact that the officers lacked the requisite level of suspicion, the

drugs, paraphernalia, and other evidence seized from his person and the

vehicle must be suppressed.

       Our standard of review of a ruling on a suppression motion is “whether

the factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.” Commonwealth v. Duke,

208 A.3d 465, 469 (Pa. Super. 2019) (citation omitted). We are bound by the

facts found by the suppression court so long as they are supported by the

record, but we review its legal conclusions de novo.       Commonwealth v.

Kane, 210 A.3d 324, 329 (Pa. Super. 2019). The suppression court has the

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sole authority as factfinder to pass on the credibility of witnesses and the

weight to be given to their testimony. Duke, 208 A.3d at 470. “Our scope of

review is limited to the record developed at the suppression hearing,

considering the evidence presented by the Commonwealth as the prevailing

party and any uncontradicted evidence presented by the defendant.” Kane,

210 A.3d at 329 (citation and brackets omitted).

      Interactions between police and members of the public are classified

into three categories:     mere encounters, investigative detentions, and

custodial detentions. In Interest of A.A., 195 A.3d 896, 904 (Pa. 2018);

Commonwealth v. Dix, 207 A.3d 383, 388 (Pa. Super. 2019).               A mere

encounter can be any formal or informal interaction between an officer and

citizen and does not need to be justified by any level of police suspicion. Dix,

207 A.3d at 388. An investigative detention “carries an official compulsion to

stop and respond” and must be supported by reasonable suspicion of unlawful

activity. Id. (citation omitted). An officer may frisk for weapons during an

investigative detention “when the officer reasonably believes the suspect may

be armed and dangerous.”        Id. (citation omitted).    Finally, a custodial

detention occurs “when the nature, duration and conditions of an investigative

detention become so coercive as to be, practically speaking, the functional

equivalent of an arrest.” Id. (citation omitted). A custodial detention must

be based upon probable cause that the individual has committed or is

committing a crime. Id.




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      “When initially evaluating the level of interaction between law

enforcement and a citizen to determine if a seizure occurred, courts conduct

an objective examination of the totality of the surrounding circumstances.”

Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa. Super. 2019) (citation

and quotation marks omitted). This test focuses on “whether the suspect has

in some way been restrained by physical force or show of coercive authority,”

but no single factor controls the ultimate determination and the courts employ

an objective test to determine whether a reasonable person would have felt

free to leave or terminate the encounter. Id. (citation omitted).

      We also employ a totality-of-the-circumstances test when determining

whether probable cause or reasonable suspicion exist to support the police

action. A.A., 195 A.3d at 904; Commonwealth v. Burno, 154 A.3d 764,

781 (Pa. 2017). Probable cause exists where “the facts and circumstances

within the police officer’s knowledge and of which the officer has reasonably

trustworthy information are sufficient in themselves to warrant a person of

reasonable caution in the belief that an offense has been committed by the

person to be arrested.” Burno, 154 A.3d at 781 (citation omitted). In making

the determination as to whether probable cause exists, courts “require only a

probability, and not a prima facie showing, of criminal activity.” Id. (citation

omitted). Reasonable suspicion is a less stringent standard that requires “a

police officer . . . to point to specific and articulable facts leading him to

suspect criminal activity is afoot.” Commonwealth v. Walls, 206 A.3d 537,

541 (Pa. Super. 2019) (citation omitted).     “[C]ourts must also afford due

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weight to the specific, reasonable inferences drawn from the facts in light of

the officer’s experience[] and acknowledge that innocent facts, when

considered collectively, may permit the investigative detention.” Id. (citation

omitted).

       At the suppression hearing, Officer Jason Tomon4 testified that on the

evening of November 27, 2013, he and his partner were patrolling a known

drug neighborhood with numerous shootings and robberies in the vicinity of

24th Street and Lehigh Avenue. N.T., 12/14/17, at 13, 20-21. On that date,

Officer Tomon turned his marked police vehicle onto 24th Street and observed

Mr. Corley reach into a stationary vehicle from the passenger-side window

with cash in his hand towards Appellant, who was seated in the driver’s seat.

Id. at 7-8. The police vehicle turned on 24th Street, a one-way street, against

the flow of traffic, and therefore the officers observed the interaction between

Mr. Corley and Appellant through the windshield of Appellant’s vehicle. Id. at

28-29. Upon noticing the presence of police, Mr. Corley dropped the cash in

the car and took several steps backwards from the vehicle.        Id. at 8-10.

Officer Tomon believed he had witnessed a narcotics transaction, exited the

vehicle with his partner, Officer Strubinger, and approached Mr. Corley while

Officer Strubinger approached Appellant on the driver’s side. Id. at 11, 13,

41-42. Mr. Corley tensed up and became “very . . . statute-like” and stated


____________________________________________


4Officer Tomon was promoted to the rank of detective after November 27,
2013. N.T., 12/14/17, at 7.

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without being questioned that “he just bought a hundred dollars[’] worth off

of him,” which Officer Tomon understood to be referring to Appellant. Id. at

13-15.   Officer Tomon observed a large bulge in Mr. Corley’s pockets and

performed a protective search, discovering a knife and fourteen stamped

packets of heroin. Id. at 12, 15, 39-40.

      Officer Tomon testified that he arrested Mr. Corley and placed him in

the police vehicle and then returned to assist Officer Strubinger. Id. at 15.

Officer Strubinger asked Appellant to exit the vehicle; Appellant initially

declined to do so and reached towards the armrest area. Id. at 15. Appellant

eventually complied with a second request to exit the vehicle. Id. Officer

Strubinger then asked Appellant if he had a gun, to which Appellant responded

that he did not have a gun but he had some marijuana in the armrest. Id.

The officers then placed Appellant in handcuffs. Id. at 16-17. Officer Tomon

searched Appellant incident to his arrest and uncovered eleven stamped

packets of heroin and cash. Id. at 18-20. A woman then arrived on the scene

and identified herself as the owner of the vehicle. Id. at 18. After verifying

that the woman was in fact listed on the vehicle’s registration, the officers

obtained the woman’s written consent to search the vehicle. Id. Upon their

search of the vehicle, the officers discovered a $100 bill that Mr. Corley had

dropped on the passenger seat, marijuana, and additional packaging and

storage paraphernalia. Id. at 18-20.

      The suppression court found that the officers had reasonable suspicion

to approach and investigate Appellant and Mr. Corley based upon Officer

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Tomon’s observation of Mr. Corley reaching into the vehicle with cash in his

hand. Id. at 58-59, 61-62. The suppression court further found that Officer

Tomon had probable cause to arrest Appellant based upon the initial

observation of the transaction and the additional evidence collected during

their investigation and that the search of the vehicle was also proper based

upon the consent obtained from the owner. Id. at 60-61.              The court

accordingly denied the motion to suppress. Id.

      Viewing the totality of the circumstances, the suppression court’s

conclusion that the detention and search of Appellant was constitutionally

proper is supported by the record. First, the officers were clearly warranted

in approaching Appellant and Mr. Corley by virtue of their observation of Mr.

Corley reaching into a vehicle with cash in his hand. The officers did not seize

Appellant or Mr. Corley merely by approaching them and inquiring as to their

activities. Luczki, 212 A.3d at 543 (“a seizure does not occur where officers

merely approach a person in public and question the individual or request to

see identification” (citation omitted)).

      Even if Appellant and Mr. Corley were detained at this point, however,

the officers clearly had reasonable suspicion to do so based upon their

observation of Mr. Corley reaching in the vehicle, with cash in hand, towards

Appellant and then dropping the money and backing away from the vehicle

when he saw the police. Walls, 206 A.3d at 541. Further, once Officer Tomon

searched Mr. Corley and discovered packets of what appeared to be a




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controlled substance in his pocket5 and Mr. Corley stated that he had “just

bought a hundred dollars[’] worth” from Appellant, N.T., 12/14/17, at 15, the

officers then had probable cause to believe that Appellant had committed a

criminal offense. Burno, 154 A.3d at 781. Officer Tomon’s basis for arresting

Appellant was only reinforced by the fact that Appellant admitted to having

marijuana in the vehicle when Officer Tomon asked whether he was carrying

a weapon.6      See Commonwealth v. Young, 162 A.3d 524, 529-30 (Pa.

Super. 2017) (defendant’s statement to police during a mere encounter that

he was in possession of two bags of marijuana justified his arrest and search

of his person).

       Once arrested, Officer Tomon lawfully searched Appellant incident to the

arrest and discovered the heroin and cash on his person. Commonwealth

v. Wilmer, 194 A.3d 564, 568 & n.7 (Pa. 2018). The officers at this point

had probable cause to search the vehicle based upon their observation of a

suspected drug transaction within the vehicle and their recovery of suspected

controlled    substances     from    both      parties   to   that   transaction.   See

Commonwealth v. Bozeman, 205 A.3d 1264, 1277 (Pa. Super. 2019)

(warrantless search of a car is permitted where supported by probable cause).
____________________________________________


5 Even if the search of Mr. Corley were unconstitutional, Appellant could not
challenge the search of Mr. Corley because it did not “violate[] his own,
personal privacy interests.” Commonwealth v. Powell, 994 A.2d 1096,
1108 (Pa. Super. 2010) (citation and emphasis omitted).
6In his suppression motion, Appellant raised the issue of whether the officers
were required to issue him warnings prior to questioning pursuant to Miranda
v. Arizona, 384 U.S. 436 (1966), but he has abandoned this issue on appeal.

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However, the search of the car was also justified based upon the consent that

the officers obtained from the vehicle’s owner. Wilmer, 194 A.3d at 568 &

n.8 (neither a warrant nor probable cause are required for a consensual

search). In sum, the officers were justified in their initial approach, seizure,

search of Appellant, and search of the vehicle, and the suppression court thus

properly denied Appellant’s suppression motion.

       Appellant next argues that Officer Tomon’s trial testimony that Mr.

Corley stated that he had “just bought a hundred dollars’ worth from”

Appellant constituted hearsay that did not fall within any recognized hearsay

exception. N.T., 7/23/18, at 54. Appellant rejects the trial court’s explanation

that the statement was admitted under the excited utterance exception to the

hearsay rule, see Trial Court Opinion at 4 (citing Pa.R.E. 803(2)), as there

was no evidence that Mr. Corley had experienced “a startling event or

condition.” Pa.R.E. 803(2). Appellant asserts that the limited foundation that

was laid to show that the statement was an excited utterance – that Mr. Corley

“tensed up” and “seemed real nervous” upon the approach of Officer Tomon,

N.T., 7/23/18, at 53 – did not support that the challenged statement was

made in response to a startling event.7
____________________________________________


7 Appellant also argues that the trial court violated his rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution by permitting the confession of a co-defendant to be admitted
without opportunity for cross examination. Appellant’s Brief at 27. This issue
was not preserved in his concise statement of errors complained of on appeal
and is therefore waived. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.
Proctor, 156 A.3d 261, 267 (Pa. Super. 2017).

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      The admissibility of evidence is a matter within the sound discretion of

the trial court and will be reversed only where there is a clear abuse of

discretion. Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019). An

abuse of discretion will be found where the trial court’s “judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.” Commonwealth

v. Lekka, 210 A.3d 343, 354 (Pa. Super. 2019) (citation omitted).

      Hearsay is an out-of-court statement offered for the truth of the matter

asserted and is generally not admissible unless it falls within one of the

exceptions set forth in the Pennsylvania Rules of Evidence. Pa.R.E. 801(c),

802; Commonwealth v. Savage, 157 A.3d 519, 524 (Pa. Super. 2017). One

of the exceptions outlined in the Rules of Evidence is for excited utterances,

which are defined as statements “relating to a startling event or condition,

made while the declarant was under the stress of excitement that it caused.”

Pa.R.E. 803(2).

      Our Supreme Court has explained the standard for this exception as

follows:

      [A] spontaneous declaration by a person whose mind has been
      suddenly made subject to an overpowering emotion caused by
      some unexpected and shocking occurrence, which that person has
      just participated in or closely witnessed, and made in reference to
      some phase of that occurrence which he perceived, and this
      declaration must be made so near the occurrence both in time and
      place as to exclude the likelihood of its having emanated in whole
      or in part from his reflective faculties . . .

Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013) (citation omitted).


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      In determining whether a statement is an excited utterance, we consider

the following factors:

      1) whether the declarant, in fact, witnessed the startling event;
      2) the time that elapsed between the startling event and the
      declaration; 3) whether the statement was in narrative form
      (inadmissible); and, 4) whether the declarant spoke to others
      before making the statement, or had the opportunity to do so.
      These considerations provide the guarantees of trustworthiness
      which permit the admission of a hearsay statement under the
      excited utterance exception. It is important to note that none of
      these factors, except the requirement that the declarant have
      witnessed the startling event, is in itself dispositive. Rather, the
      factors are to be considered in all the surrounding circumstances
      to determine whether a statement is an excited utterance.

Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (citations,

quotation marks, and emphasis omitted).

      Officer Tomon testified in relevant part during his direct examination as

follows:

      Q. As you were – after you had seen that white male [Mr. Corley]
      drop the currency in the car, what did that white male do?

      A. He took a few steps back from the vehicle, Your Honor. He
      took a couple backwards steps.

      Q. After taking these couple backwards steps, what did he do?

      A. Like I said, I stopped, exited my vehicle, approached the male.
      When I got to him, that white male tensed up. He seemed real
      nervous, his body tensed up. At that time I observed that male
      had large bulges in his pockets. I patted him down. He did have
      a pocketknife on him. Doing my pat down I recognized the
      presence of narcotics and I recovered one bundle. I believe it was
      a bundle of ten, an additional bundle of four glassine blue packets
      stamped "Killer" from his pocket. When I recovered that, Your
      Honor, that’s when the white male then stated to me –

      [Appellant’s counsel]: Objection.


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      THE COURT: Overruled.

      THE WITNESS: The white male made a statement to me that he
      just bought a hundred dollars’ worth from him, implying
      [Appellant].

N.T., 7/23/18, at 53-54.

      It is clear that Mr. Corley made his statement that he had purchased a

“hundred dollars’ worth” from Appellant contemporaneously with his search

and arrest, that his statement related to this event, that he had not had the

opportunity to reflect or speak with others after the event occurred, and that

his utterance was not in narrative form. Murray, 83 A.3d at 157; Keys, 814

A.2d at 1258. The only issue to be resolved then is whether Mr. Corley’s

interaction with the police constituted a “startling event,” in other words that

the event was an “unexpected and shocking occurrence” that caused Mr.

Corley to experience an “overpowering emotion.” Murray, 83 A.3d at 157.

      We do not find an abuse of discretion in the trial court’s determination

that Mr. Corley’s statement was precipitated by a “startling event.” The record

shows that when he saw that the police had caught him in the process of a

drug deal, he dropped the $100 bill in his hand inside the vehicle and took

several steps backwards. N.T., 7/23/18, at 53. According to Officer Tomon,

Mr. Corley at this point “seemed real nervous” and “his body tensed up.” Id.

at 53. Mr. Corley’s statement admitting that he had just purchased heroin

from Appellant was then made immediately after Officer Tomon searched him

and found 14 heroin packets on his person.        Id. at 53-54.    Mr. Corley’s

behavior was consistent with him being startled by the unexpected and


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shocking occurrence of being arrested and found with multiple heroin packets

on his person.

      Even if the trial court had abused its discretion in admitting Mr. Corley’s

statement, we would conclude that it was harmless error.         Harmless error

exists where “the properly admitted and uncontradicted evidence of guilt was

so overwhelming and the prejudicial effect of the error was so insignificant by

comparison that the error could not have contributed to the verdict.”

Commonwealth v. Vucich, 194 A.3d 1103, 1110 (Pa. Super. 2018) (citation

omitted).   Appellant admitted that he was in possession of heroin, N.T.,

7/23/18, at 89, and therefore the only issue to be resolved was whether he

had the intent to deliver the heroin.           The Commonwealth adduced

overwhelming additional evidence of a sale by Appellant to Mr. Corley,

including Officer Tomon’s witnessing of Mr. Corley reaching into the open

passenger side window of the vehicle occupied by Appellant with cash in his

hand, which Officer Tomon understood from his training and experience to be

consistent with a drug transaction. Upon seeing the police, Mr. Corley dropped

the cash inside the vehicle and backed away and tensed up. The officers then

recovered packets of heroin from both Mr. Corley and Appellant with the same

“Killer” stamp on them, and they also recovered $753 in cash on Appellant

and drug paraphernalia from his vehicle. The Commonwealth also produced

an expert witness in the area of narcotics use, packaging, and distribution who

opined that Officer Tomon’s description of the transaction and the physical

evidence collected at the scene was consistent with Appellant having an intent

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to distribute the heroin. N.T., 7/23/18, at 77-83. The expert witness made

no reference to Mr. Corley’s statement that he bought a “hundred dollars’

worth” from Appellant, and likewise the Commonwealth did not reference the

statement in its closing argument.         Id. at 97-100.       In light of this

overwhelming other evidence to prove Appellant committed the PWID offense,

Appellant did not suffer any prejudice from the admission of Officer Tomon’s

testimony regarding the statement of Mr. Corley, and Appellant’s third issue

merits no relief.

      In his final issue, Appellant argues that the trial court erred by not

removing Appellant’s trial counsel because his counsel worked for the

Defender Association, the same organization that had previously represented

Mr. Corley in the latter’s successful suppression motion. Appellant contends

that, as a result of this dual representation, his counsel had “a glaring conflict

of interest that directly prohibited trial counsel from calling the exculpatory

witness, Mr. Corley, whose testimony would have exonerated” Appellant.

Appellant’s Brief at 27. Appellant notes that he personally raised the conflict

of interest issue and expressed his desire to call Mr. Corley prior to trial.

      “A defendant cannot prevail on a conflict of interest claim absent a

showing of actual prejudice.”    Commonwealth v. Spotz, 896 A.2d 1191,

1231 (Pa. 2006) (citation omitted). Prejudice may be presumed when the

appellant shows that counsel was burdened by an “actual,” rather than a mere

“potential,” conflict of interest. Commonwealth v. Collins, 957 A.2d 237,

251 (Pa. 2008). An actual conflict of interest exists if, “during the course of

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counsel’s representation, the client’s interests diverge with respect to a

material fact or legal issue or to a course of action” from another client’s

interests. Commonwealth v. Tharp, 101 A.3d 736, 754 (Pa. 2014) (citation

and quotation marks omitted). In other words, an actual conflict is present

where counsel “actively represent[s]” the conflicting interests and those

interests “adversely affect[]” the lawyer’s performance.         Id. (citation

omitted).    Where the clients are represented successively rather than

concurrently, the conflict is only potential and the appellant must then show

actual prejudice. Id.

      Here, the record establishes that an attorney from the Defender

Association represented Mr. Corley for his motion to suppress in 2014; Mr.

Corley was successful in his suppression motion and the charges against him

were then dropped. Appellant was represented by other counsel until 2017

when that attorney moved to withdraw his appearance based upon a

breakdown in communication with Appellant. The trial court then appointed

the Defender Association, which represented Appellant for his suppression

hearing and non-jury trial. Because the Defender Association did not actively

represent the interests of Mr. Corley and Appellant at the same time, Appellant

must show that he was prejudiced by the potential conflict.      See id. (trial

counsel’s   cross-examination   of   witnesses   who   had   previously   been

represented by same public defender’s office was not an actual conflict of

interest because representation of witnesses had terminated prior to trial).




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       Appellant has failed to make any showing that he was prejudiced by the

Defender Association’s successive representation of him and Mr. Corley. Mr.

Corley was represented by a different attorney from the Defender Association,

and Appellant’s current counsel stated that he was unaware of the details of

Mr. Corley’s case and did not see a conflict of interest in his representation.

N.T., 7/23/18, at 40-41.        While Appellant stated to the trial court that he

wanted Mr. Corley to testify at his trial and he now asserts that his trial counsel

in some way prevented Mr. Corley’s testimony, counsel in fact did not refuse

Appellant’s request and sought a brief delay in the proceedings to contact Mr.

Corley and see if he was willing to testify. Id. at 32-33. The trial court, not

Appellant’s counsel, refused the request for a continuance and instead stated

that Appellant would have to invoke his right to a jury trial.8 Id. at 33-34.

Appellant ultimately decided that he would forgo Mr. Corley’s testimony and

proceed to a non-jury trial. Id. at 43. Indeed, during his colloquy for his

waiver of his right to a jury trial, he explained that he was satisfied with his

attorney’s services to that point. Id. at 44.

       Accordingly, Appellant is not entitled to relief.

       Judgment of sentence affirmed.




____________________________________________


8 Appellant has not challenged the trial court’s ruling conditioning his request
for a continuance to seek Mr. Corley’s testimony on his invocation of his right
to a jury trial.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2020




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