J-S07029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOMINIC JARRELL MCLAURIN                   :
                                               :
                       Appellant               :     No. 804 MDA 2018

          Appeal from the Judgment of Sentence Entered May 2, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000650-2016


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED: FEBRUARY 5, 2020

        Dominic Jarrell McLaurin appeals from his judgment of sentence,

imposed on May 2, 2018, following a jury trial resulting in convictions for

possession with intent to deliver a controlled substance, possession of a

controlled substance, possession of drug paraphernalia, and criminal use of a

communications facility.1 McLaurin challenges the denial of his motion to

suppress evidence and the admission of evidence regarding a prior statement.

We affirm.

        We derive the following statement of facts and procedural history from

the trial court’s opinions. See Tr. Ct. Suppression Op., 4/11/17; Tr. Ct.

Pa.R.A.P. 1925(b) Op., 9/24/18. On January 6, 2016, Troopers Tyson Havens

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(16), (32), (30), and 35 P.S. § 7512(a), respectively.
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and Edward Dammer of the Pennsylvania State Police were on patrol in

Williamsport, Pennsylvania when they encountered McLaurin in a black Chevy

Impala sedan in the parking lot of a Nittany Minute Mart. McLaurin, along with

another man, were rummaging around in the vehicle with all of the doors

open. The troopers, surmising that McLaurin and the other individual were

looking for drugs, pulled into a parking spot parallel to the Chevy Impala, but

several spots away. When Trooper Havens approached the vehicle, McLaurin

was in the driver’s seat and the other individual was already inside the

convenience store. Trooper Havens questioned McLaurin, through the driver’s

side window, regarding the registration of the vehicle and whether he had

“dropped a joint.” McLaurin denied that accusation and instead asserted that

he had dropped paperwork.

      Trooper Havens then indicated that he smelled marijuana, but McLaurin

denied having any in the car. At this point, Trooper Dammer approached the

front passenger window of the vehicle, and Trooper Havens directed McLaurin

to lower the passenger window. After McLaurin complied, Trooper Dammer

also stated that he smelled marijuana. Before they could inquire further, the

troopers noticed that the second individual, who had gone into the

convenience store, was attempting to walk away briskly. Trooper Dammer

returned to the police cruiser and unsuccessfully pursued the individual.

Trooper Dammer returned to the scene, parking directly behind the Chevy

Impala.




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      Trooper   Havens   continued   to    question   McLaurin   and   request

identification, while Trooper Dammer reiterated that he smelled marijuana.

Trooper Dammer proceeded to lean into the passenger side of the vehicle, so

that his entire upper body was inside the car. It was from this position that

Trooper Dammer spotted eight packets of heroin in the front passenger door;

no marijuana was ever found. The troopers removed McLaurin from the car

and searched it. In addition to the heroin, they seized $1,626.00 in cash and

a cell phone. After obtaining a warrant, Trooper Havens discovered

incriminating information on the cell phone.

      McLaurin was charged with the aforementioned offenses, and before

trial, he moved to suppress the heroin and cell phone discovered in the car.

The trial court denied the motion, determining that both troopers had probable

cause to search McLaurin’s car. On December 28, 2017, the Commonwealth

filed a notice of intent to introduce certified records of regularly conducted

activity, pursuant to Pa.R.E. 902(11). In response, McLaurin filed a motion to

preclude the admission of evidence concerning statements he made on March

1, 2017, while being processed for admission to Lycoming County prison.

Specifically, McLaurin objected to the admission of evidence of statements he

made to Prison Nurse Cynthia Mann denying any personal use of street drugs

and the associated intake records from the prison. McLaurin’s arguments

centered on hearsay and relevance contentions. The trial court also denied

this motion.




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        After a jury convicted McLaurin in February 2018, the trial court imposed

an aggregate sentence of three to ten years’ incarceration. The instant timely

appeal followed.2 McLaurin filed a court ordered Pa.R.A.P. 1925 (b) statement

and the trial court filed a responsive opinion Pa.R.A.P. 1925(a) opinion, which

also referred to the court’s earlier opinion issued in support of the court’s

denial of McLaurin’s suppression motion. Initially, appointed counsel for

McLaurin filed an Anders3 brief, ostensibly asserting that McLaurin’s issues

were frivolous. However, this Court concluded that counsel’s Anders brief was

deficient and therefore remanded the case and directed counsel to file either

an advocate’s brief or a proper Anders brief. After receiving an extension

from this Court, counsel filed the instant advocate’s brief wherein McLaurin

raises the following issues for our review:

           I Whether the trial court’s factual finding were supported
           by the record, and thus the trial court misapplied the law
           and erred in denying [McLaurin’s] motion to suppress?

           II Whether the trial court erred in its decision to allow the
           introduction of hearsay evidence in the form of testimony
           by a prison nurse and admission of the related intake
           assessment?

McLaurin’s Br. at 7.

        In his first issue, McLaurin contends that the trial court erred by failing

to grant his motion to suppress evidence obtained incident to the troopers’


____________________________________________


2 This Court vacated and reinstated this appeal twice due to defense counsel’s
failure to file a timely docketing statement.

3   Anders v. California, 386 U.S. 738 (1967).

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search of his car. The thrust of McLaurin’s argument is twofold. First, McLaurin

asserts that Trooper Havens’ initial interaction with him constituted an

investigatory detention rather than a mere encounter, as characterized by the

trooper. To this end, McLaurin avers that the factual circumstances

surrounding his initial interaction with the troopers would cause a reasonable

person to believe that he was not free to leave and in fact was subject to a

detention. McLaurin argues that when the troopers approached his car they

parked their vehicle directly behind his, thereby blocking his means of egress.

Further, McLaurin maintains that he was also blocked from leaving by the fact

that Trooper Havens approached the closed driver’s side door of his car.

      McLaurin likens the facts of the instant case to those presented in

Commonwealth v. DeHart, 745 A.2d 633 (Pa.Super. 2000). In that case,

troopers approached a stopped vehicle in their cruiser and asked the

occupants, “[W]hat’s going on here?” Id. at 635. This Court concluded that

although that interaction was a mere encounter, once the troopers got out of

their vehicle and approached the defendant’s car, the interaction became an

investigative detention. Id. at 638.

      Here, McLaurin cites DeHart to argue that Troopers Havens and

Dammer subjected him to an investigative detention by alighting from their

vehicle and approaching the closed driver’s side door of his vehicle. Further,

McLaurin points out that the troopers observed him and another unidentified

individual only rummaging around in the vehicle before the troopers


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approached. Thus, McLaurin asserts that the troopers did not have reasonable

suspicion to support their investigative detention of him. Accordingly,

McLaurin maintains that the trial court erred by denying his motion to suppress

all evidence emanating from his allegedly unlawful investigative detention.

      The second element of McLaurin’s suppression argument concerns his

contention that the troopers did not have probable cause to search his car.

While noting that both troopers stated that they smelled marijuana coming

from his vehicle, McLaurin posits that this olfactory observation could not

possibly be true because no marijuana was ultimately found in his car. He

argues that the trial court’s reliance upon Commonwealth v. Gary, 91 A.3d

102 (Pa. 2014) (plurality), and Commonwealth v. Stoner, 344 A.2d 633

(Pa.Super.   1995),   is   misplaced.   He    contends   that   those   cases   are

distinguishable because although the officers at issue in both of those cases

were deemed to have probable cause to search vehicles after noting the odor

of marijuana, in both cases marijuana was ultimately found.

      On review of an order denying a motion to suppress, we “determine

whether the certified record supports the suppression court's factual findings

and the legitimacy of the inferences and legal conclusions drawn from those

findings.” Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011).

In making this assessment, we “consider only the evidence of the

prosecution's witnesses and so much of the defense as, fairly read in the

context of the record as a whole, remains uncontradicted.” Id. If the record


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supports the factual findings of the suppression court, we reverse “only if there

is an error in the legal conclusions drawn from those factual findings.” Id.

Whether an officer’s undisputed testimony reflects that a seizure occurred is

a question of law. Commonwealth v. Au, 42 A.3d 1002, 1006 (Pa. 2012).

      McLaurin challenges the characterization of his initial encounter with the

troopers as constituting a “mere encounter.” “The Fourth Amendment to the

United States Constitution and Article 1, Section 8 of [the Pennsylvania]

Constitution protect citizens from unreasonable searches and seizures.”

Commonwealth v. Young, 162 A.3d 524, 527-28 (Pa.Super. 2017).

Citizens’ interactions with police fall into one of three categories: (1) mere

encounters, (2) investigative detentions, or (3) custodial arrests. Id. at 528.

A “mere encounter can be any formal or informal interaction between an

officer and a citizen, but will normally be an inquiry by the officer of a citizen.”

Id. A mere encounter does not require the subject to stop or respond, and

does not require the police to have any level of suspicion. Id. at 529. An

“investigative detention” “subjects a suspect to a stop and a period of

detention, but does not involve such coercive conditions as to constitute an

arrest.” Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa.Super. 2007). An

investigative detention must be supported by reasonable suspicion of criminal

activity. Id. A “custodial detention” must be supported by probable cause.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).




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      An investigative detention occurs “[w]hen a police officer temporarily

detains an individual by means of physical force or a show of authority.”

Commonwealth v. Baldwin, 147 A.3d 1200, 1203 (Pa. Super. 2016). “To

decide whether a seizure has occurred, a court must consider all the

circumstances surrounding the encounter to determine whether the demeanor

and conduct of the police would have communicated to a reasonable person

that he or she was not free to decline the officer's request or otherwise

terminate the encounter.” Commonwealth v. Reppert, 814 A.2d 1196,

1201-02 (Pa.Super. 2002) (en banc). Factors relevant to this analysis include

“the threatening presence of several officers, the display of a weapon by an

officer, some physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance with the officer's request

might be compelled.” Commonwealth v. Livingstone, 174 A.3d 609, 621

(Pa. 2017) (quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980)). However, no single factor dictates “the ultimate conclusion as to

whether a seizure has occurred.” Id. (quoting Commonwealth v. Strickler,

757 A.2d 884, 890 (Pa. 2000)).

      However, a seizure does not occur when officers merely approach a

person in public and request information, so long as the officers’ behavior does

not “convey a message that compliance with their requests is required.”

Lyles, 97 A.3d at 303 (quoting Florida v. Bostick, 501 U.S. 429, 437

(1991)). An officer may thus approach a parked vehicle to request information


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from the occupants without having any level of suspicion. Id. For example, in

Au, the Pennsylvania Supreme Court concluded that an officer’s request for

identification was a mere encounter. The court explained that the officer did

not “activate the emergency lights on his vehicle; position his vehicle so as to

block the car that Appellee was seated in from exiting the parking lot; brandish

his weapon; make an intimidating movement or overwhelming show of force;

make a threat or a command; or speak in an authoritative tone.” 42 A.3d at

1008 (internal citations omitted).

      McLaurin also challenges the trial court’s determination concerning

probable cause. “As a general rule, for a search to be reasonable under the

Fourth Amendment [of the United States Constitution] or Article I, Section 8

[of the Pennsylvania Constitution], police must obtain a warrant, supported

by probable cause and issued by an independent judicial officer, prior to

conducting the search.” Gary, 91 A.3d at 107. An exception to this general

rule is the search and seizure of vehicles. Id. Pennsylvania constitutional law

governing warrantless searches of motor vehicles is coextensive with federal

law. Id. at 138. A warrantless search of a vehicle is appropriate where officers

have probable cause to search. Id. “No exigency beyond the inherent mobility

of a motor vehicle is required.” Id.

      “Probable cause exists where the facts and circumstances within the

officer’s knowledge are sufficient to warrant a prudent individual in believing

that an offense was committed and the defendant has committed it.”


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Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa.Super. 2011) (citation

omitted). Thus, we must consider the totality of the circumstances in the view

of the arresting officer. Id. To this end, we do not inquire about whether an

officer’s belief was “correct or more likely true than false. Rather, we require

only a probability, and not a prima facie showing, of criminal activity.”

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citation and

emphasis omitted). Particularly relevant to a probable cause analysis is an

officer’s experience as it related to the topic underlying the search or seizure.

Id. at 935. Further, in Pennsylvania “plain smell” is akin to “plain view” in the

context of a probable cause analysis. Commonwealth v. Stoner, 344 A.2d

633, 635 (Pa.Super. 1975) (holding that the smell of marijuana is sufficient

to establish probable cause).

      In this case, contrary to McLaurin’s assertion, the troopers initially

parked their vehicle several parking stalls away from McLaurin’s vehicle. Thus,

McLaurin’s argument that he was “blocked in” by the troopers is unavailing.

Further, prior to approaching McLaurin’s car, the troopers did not activate the

emergency lights on their vehicle. When Trooper Havens approached

McLaurin, on the driver’s side of McLaurin’s vehicle, he did not brandish his

weapon, make an intimidating show of force, or speak in an authoritative tone.

Therefore, we conclude that the record supports the trial court’s determination

that the trooper’s initial contact with McLaurin constituted a mere encounter.

See Lyles, 97 A.3d at 303; Au, 42 A.3d at 1006.


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      Next, McLaurin asserts that the troopers’ ultimate failure to find any

marijuana in his vehicle negates any probable cause they had to search his

car based on their purported detection of the odor of marijuana. This

argument is unavailing because this Court must consider the totality of the

circumstances, at the relevant time and from the perspective of the officer at

issue, when reviewing a challenge to a finding of probable cause. See Griffin,

24 A.3d at 1042. Thus, whether Trooper Havens and Trooper Dammer

ultimately found marijuana is of no moment. See Thompson, 985 A.2d at

931. Here, the troopers’ testimony that they smelled marijuana – which the

suppression court credited – was sufficient to supply the troopers with

probable cause to search McLaurin’s car. See id.; Stoner, 344 A.2d at 635;

Gary, 91 A.3d at 107. Accordingly, we hold that the trial court did not err by

denying McLaurin’s motion to suppress. Griffin, 24 A.3d at 1041. Thus,

McLaurin’s first issue warrants no relief.

      In his second issue, McLaurin asserts that the trial court erred by

admitting the testimony of Nurse Mann and the associated intake records from

the Lycoming County prison. The evidence at issue is McLaurin’s statement to

Nurse Mann, upon his intake at the prison, that he was not a user of street

drugs. McLaurin asserts that Mann’s testimony regarding his statements to

her constituted inadmissible hearsay. He also contends that the trial court

erred in admitting the evidence because it was more prejudicial than

probative. He avers that the fact that he was not using street drugs on March


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1, nearly two months after the troopers found heroin in his car on January 6,

2019, was not probative about any drug habit he may have had on the night

in question. Instead, according to McLaurin, the admission of his statement

only served to prejudice him by leading the jury to believe that the drugs he

had in his vehicle must not have been for his personal use, but instead for

purposes of distribution.

      “A trial court has broad discretion to determine whether evidence is

admissible and a trial court's ruling on an evidentiary issue will be reversed

only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa.Super. 2013) (citing Commonwealth v. Cook, 676 A.2d 639,

647 (Pa. 1996)). We do not disturb a ruling admitting evidence “unless that

ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support to be clearly erroneous.” Id. (quoting

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our

scope of review over an evidentiary question is plenary, we may review the

ruling within the context of the entire record. Id.

      Relevant evidence is admissible unless “otherwise provided by law.”

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) (quoting Pa.R.E.

402). Evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence [and] the fact is of

consequence in determining the action.” Pa.R.E. 401. Further, “[t]he court

may exclude relevant evidence if its probative value is outweighed by a danger


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of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403.

      “Hearsay is defined as ‘a statement, other than one made by the

declarant while testifying at trial or hearing, offered in evidence to prove the

truth of the matter asserted.’” Commonwealth v. Cunningham, 805 A.2d

566, 572 (Pa.Super. 2002) (quoting Pa.R.E. 801(c)). Hearsay is inadmissible

“except as provided by [the Rules of Evidence], by other rules prescribed by

the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.

      One exception to the hearsay rule is an opposing party’s statement:

“(25) An Opposing Party’s Statement. The statement is offered against an

opposing party and: (A) was made by the party in an individual or

representative capacity….” Pa.R.E. 803(25) (A).

         Party admissions are not subject to hearsay exclusion
         because[ ] it is fair in an adversary system that a party's
         prior statements be used against him if they are inconsistent
         with his position at trial. In addition, a party can hardly
         complain of his inability to cross-examine himself. A party
         can put himself on the stand and explain or contradict his
         former statements. Thus, in criminal cases, [the Supreme
         Court of Pennsylvania] has consistently held that a
         defendant's out-of-court statements are party admissions
         and are exceptions to the hearsay rule.

Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 2006) (citations

omitted).

      In the instant case, the trial court aptly concluded that Nurse Mann’s

testimony regarding McLaurin’s admission that he was not a user of street

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drugs was in fact hearsay under Pa.R.E. 801(c) because it was an out-of-court

statement offered for the truth of the matter asserted. However, the court

properly found Nurse Mann’s testimony regarding McLaurin’s statements was

admissible, pursuant to Pa.R.E. 803(25)(A), as a statement of a party

opponent. See Edwards, 903 A.2d at 1157-58.

      Further, the court properly considered the probative value of McLaurin’s

statement that he was not a street drug user, in light of McLaurin’s contention

at trial that the contraband found in his car was for his personal use, rather

than for distribution. See Pa.R.E. 401. All of this was relevant to whether

McLaurin possessed the intent to deliver. McLaurin’s claim that the evidence

was unfairly prejudicial because it only served to prove that he intended to

deliver the drugs is therefore utterly meritless. Any issue with the two-month

lapse between the night in question and his statement to Nurse Mann was a

question of the weight of the testimony, not its admissibility. The trial court

did not abuse its discretion by admitting Nurse Mann’s testimony. See

Huggins, 68 A.3d at 966; Minich, 4 A.3d at 1068.

      Regarding the intake records, McLaurin fails to develop any argument

specific to the admission of such evidence. He therefore waived this argument.

See Commonwealth v. Charleston, 94 A.3d 1012, 1022-23 (Pa.Super.

2014) (finding waiver where appellant failed to develop argument). In any

event, any error in the admission of the records was harmless. Harmless error

exists where:


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          (1) the error did not prejudice the defendant or the
          prejudice was de minimis; (2) the erroneously admitted
          evidence was merely cumulative of other untainted evidence
          which was substantially similar to the erroneously admitted
          evidence; or (3) 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. Chmiel, 889 A.2d 501, 521 (Pa. 2005). “[A]n erroneous

ruling by a trial court on an evidentiary issue does not require us to grant

relief where the error was harmless.” Id. In this case, the intake forms

presented information cumulative of Nurse Mann’s properly admitted

testimony.4 Thus, McLaurin’s second issue is also devoid of merit.

       Accordingly, because we conclude that the trial court did not error by

denying McLaurin’s motion to suppress evidence or by the admission of

evidence regarding his prior statement denying street drug use, we affirm

McLaurin’s judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


4 We note that the instant trial court precluded the admission of the same
written intake records in McLaurin’s prior trial for similar charges. There, the
court found that the records constituted hearsay, for which no exception to
the hearsay rule applied, and were more prejudicial then probative. This Court
affirmed. Commonwealth v. McLaurin, 195 A.3d 968 (Pa.Super. August 3,
2018) (unpublished memorandum). The instant case is distinguishable
because, most critically, Nurse Mann testified here regarding McLaurin’s
statements, thus rendering any error in admitting the documents harmless.
No such testimony was presented in McLaurin’s previous case.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2020




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