J-S46004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 STEVEN AUSTIN                            :
                                          :
                   Appellant              :   No. 944 EDA 2017

         Appeal from the Judgment of Sentence October 1, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0011440-2011

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 14, 2018

     Steven Austin appeals from the judgment of sentence of seven to

fourteen years imprisonment after he was convicted of possession with intent

to deliver a controlled substance (“PWID”). We affirm.

     The trial court summarized the history of this case as follows:

            On September 1, 2011, at approximately 1:25 p.m., police
     officers from the Narcotics Field Unit set up surveillance in the
     area of 5600 Chester Avenue in the city and county of Philadelphia
     for a narcotics investigation. Parked facing eastbound in a gold
     Ford Taurus, two officers from the Narcotics Field Unit observed a
     black Volkswagen Jetta, with the engine running, parked on the
     north side of the 5600 block of Chester Avenue occupied by a
     white male in the driver’s seat. A short time later, the officers
     observed [Appellant] walking westbound on Chester Avenue while
     cradling, similar to how a football is held, a torn brown paper lunch
     bag. The officers then observed [Appellant] enter the front
     passenger side of the black Volkswagen. Upon [Appellant’s]
     entering the Volkswagen, the vehicle pulled off and proceeded
     westbound on Chester Avenue. When the Volkswagen pulled off,
     the officers from the Narcotics Field Unit made a U-turn and
     proceeded to follow the Volkswagen containing [Appellant]
     westbound on Chester Avenue. The Volkswagen turned right, or
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     northbound, onto 57th Street from Chester Avenue, followed by
     the narcotics officers behind the Volkswagen with [Appellant].

            While following the Volkswagen, the narcotics officers
     observed that the taillights of the Volkswagen did not operate
     correctly. When the Volkswagen came to rest at a stop sign, the
     vehicle would stop, but the taillights did not come on. The
     inoperable taillights provided the probable cause for the officers
     to stop the vehicle. The narcotics officers then placed a call over
     the police radio to the 12th District requesting a marked police
     unit initiate a traffic stop of the Volkswagen. A responding marked
     police unit initiated a traffic stop on the 1200 block of South 58th
     Street and the Volkswagen pulled over. As officers approached
     the Volkswagen, [Appellant] in the front passenger seat was
     observed making a dipping motion towards the center console of
     the vehicle.

           An officer from the Narcotics Field Unit approached the
     vehicle on the front passenger side and observed in plain view the
     same brown paper bag [Appellant] had in his possession on
     Chester Avenue between the driver and passenger seats. While
     following the Volkswagen from the 5600 block of Chester Avenue,
     the officers never observed any brown paper bag being tossed
     from the Volkswagen. The narcotics officer was able to observe
     through the passenger window through tears in the brown paper
     bag a white powder contained in a clear bag and approximately
     200 unused green bags consistent with the packaging of narcotics.
     After observing the suspected cocaine in plain view, the officers
     asked [Appellant] to step out of the vehicle. [Appellant] was
     hesitant to remove himself from the passenger seat of the vehicle
     and stated to one of the officers present on the scene that he did
     not want to go to jail.

            [Appellant] was asked to step to the rear of the vehicle while
     officers from the Narcotics Field Unit continued with the search of
     the Jetta. Officers recovered from the brown paper bag 53.436
     grams of cocaine with a street value of $7,000-14,000 depending
     on the quantity in which it[ is] sold; multiple unused green bags
     consistent with the packaging of narcotics; 50 Endocet pills and
     25 Watson pills; and an electronic scale. [Appellant], while at the
     rear of the car with other officers, resisted when officers
     attempted to place him into custody. [Appellant] was pepper-
     sprayed, secured into custody and charged.


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Trial Court Opinion, 9/18/17, at 1-3 (citations omitted).

      Appellant filed a pretrial motion to suppress all physical evidence seized

from his person or vehicle. The motion was denied after a hearing, and the

case proceeded to a jury trial. Upon evidence of the facts detailed above, the

jury convicted Appellant of PWID on June 1, 2015, and the trial court

sentenced him on October 1, 2015, to seven to fourteen years confinement.

      Appellant filed a timely post-sentence motion, claiming that his

suppression motion should have been granted and his sentence was

unreasonable. The motion was denied by operation of law with no subsequent

appeal. Appellant’s direct appeal rights were reinstated nunc pro tunc through

a petition filed pursuant to the Post Conviction Relief Act, and this timely

appeal followed.

      Appellant presents the following questions for our consideration.

      A.     Whether the trial court erred in failing to declare a mistrial
             after the prosecution argued in closing that the jury was
             required to convict [Appellant] because drugs are ruining
             Philadelphia.

      B.     Whether the trial court erred in failing to require the
             Commonwealth to produce the handwritten notes from
             which the Commonwealth’s main police witness testified
             during the motion to suppress hearing[.]

Appellant’s brief at vii.

      With his first issue, Appellant contends that the trial court erred in not

sua sponte declaring a mistrial based upon the prosecutor’s remarks during




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closing arguments. Appellant’s brief at 1-6. We begin with a review of the

applicable law.

      “It is within a trial judge’s discretion to declare a mistrial sua sponte

upon the showing of manifest necessity, and absent an abuse of that

discretion, we will not disturb his or her decision.” Commonwealth v. Kelly,

797 A.2d 925, 936 (Pa.Super. 2002); see also Pa.R.Crim.P. 605(B). “A trial

court may grant a mistrial only where the incident 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 weighing and rendering a true

verdict.” Commonwealth v. Powell, 171 A.3d 294, 301 (Pa.Super. 2017)

(quoting Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014)).

      Where, as here, the mistrial is based upon prosecutorial misconduct,

      it is within the discretion of the trial court to determine whether a
      defendant has been prejudiced by misconduct or impropriety to
      the extent that a mistrial is warranted. A new trial is warranted
      where the unavoidable effect of the conduct or language was to
      prejudice the factfinder to the extent that the factfinder was
      rendered incapable of fairly weighing the evidence and entering
      an objective verdict. We have held the Due Process Clause is not
      a code of ethics for prosecutors; its concern is with the manner in
      which persons are deprived of their liberty.            As such, the
      touchstone is the fairness of the trial, not the culpability of the
      prosecutor.

Id. at 301-02 (cleaned up).

      The comments at issue, made near the end of the Commonwealth’s

closing argument, were in response to Appellant’s argument that there was

no evidence that Appellant delivered the bag of drugs to another person:


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      I don’t have to prove that. I just have to prove that he possessed
      that bag and there were those drugs in that bag and that those
      drugs were possessed with the intent to deliver. That is the
      difference. That is the difference. And the only verdict, the only
      verdict that you could possibly find is guilty because these drugs
      are literally ruining Philadelphia. These items here -- these drugs.

N.T. Trial, 6/1/15, at 109-10.

      Appellant objected, stating “Objection to what’s ruining Philadelphia.

That’s not the issue at hand here.” Id. at 110. The trial court sustained the

objection. Id. Appellant did not request further relief, such as a mistrial or a

curative instruction. The first time Appellant raised the issue was in his

statement of errors complained of on appeal.

      Appellant contends that the trial court should have declared a mistrial

sua sponte. It is unquestionable that a trial court has the power to declare a

mistrial sua sponte.     See Commonwealth v. Morris, 773 A.2d 192, 194

(Pa.Super. 2001). However, the appellate authority concerning sua sponte

mistrials considers whether the trial court’s exercise of that power was proper

(i.e., whether there was manifest necessity to do so), for if not, double

jeopardy prohibits the retrial of the defendant. Id. The cases do not set forth

standards for when that power should be employed in the first place, let alone

indicate that this Court should ever review a trial court’s decision not to grant

a mistrial sua sponte.

      As Appellant cites no authority to suggest that he was relieved of his

duty to request the declaration of a mistrial in order to preserve the issue for

our review, we conclude that that duty remained squarely with Appellant.

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Hence, because Appellant did not raise the issue in the trial court, he failed to

preserve the issue for our review. See, e.g., Commonwealth v. Jones, 460

A.2d 739, 741 (Pa. 1983) (concluding claim that the defendant was deprived

of a fair trial by the prosecutor’s misconduct during arguments was waived

“because defense counsel immediately objected (which objection was

sustained), but made no request for mistrial or curative instructions”);

Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa.Super. 2013)

(“Sandusky did not move for a mistrial or request a curative instruction; he

merely lodged an objection. As such, this claim is not preserved for appellate

review.”). No relief is due.1

       Appellant’s    remaining      issue     challenges   the   suppression   court’s

determination as to one of the Rules of Evidence. “Generally, an appellate

court’s standard of review of a trial court’s evidentiary rulings is whether the

trial court abused its discretion; however, where the evidentiary ruling turns

on a question of law our review is plenary.” Commonwealth v. Woeber,

174 A.3d 1096, 1100 (Pa.Super. 2017) (internal quotation marks and citation

omitted).




____________________________________________


1 In any event, the trial court opined that there was no manifest necessity to
declare a mistrial, as it “made careful effort to: (1) place the burden of proof
squarely on the Commonwealth; (2) outline the law and elements of the
offense; and, (3) instruct the jury to render a verdict without bias based only
on the evidence presented.” Trial Court Opinion, 9/18/17, at 11.

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      Appellant claims that the trial court erred in neglecting to compel the

Commonwealth to produce copies of notes used by Officer Rick Williams during

his testimony at the suppression hearing.           Appellant’s brief at 6-7.

Specifically, Appellant contends that production of the notes, or their

inspection by the court in camera, was mandated by Pa.R.E. 612. Id. at 7-

10.

      The Commonwealth argues that Appellant did not preserve this issue for

appeal. It asserts that, at the suppression hearing, Appellant claimed that it

was entitled to the document because the defense was entitled to “anything

the officer writes down.” Commonwealth’s brief at 20. The Commonwealth

insists that “at no time in the court below did [Appellant] ever claim that he

was entitled to see Officer Williams’[s] notes because he had supposedly used

them to ‘refresh his recollection,’ and at no time did he cite Pa.R.E. 612.” Id.

      Rule 612 provides that “[i]f a witness uses a writing or other item to

refresh memory while testifying, an adverse party is entitled to have it

produced at the hearing, trial or deposition, to inspect it, to cross-examine the

witness about it, and to introduce in evidence any portion that relates to the

witness’s testimony.” Pa.R.E. 612(b)(1). Further, “[i]f the producing party

claims that the writing or other item includes unrelated matter, the court must

examine it in camera, delete any unrelated portion, and order that the rest be

delivered to the adverse party. Any portion deleted over objection must be

preserved for the record.” Pa.R.E. 612(c).


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      At the suppression hearing, when Officer Williams was asked about the

incident in question, he plainly consulted notes regarding some of the specifics

with no objection from Appellant. See, e.g., N.T. Suppression, 3/12/12, at 9

(“I observed a black Volkswagen Jetta -- if I can refer to my notes -- . . .

Pennsylvania tag of GKZ-8988, parked on the 5600 block of Chester Avenue

facing northbound.”). Appellant did not object to the officer’s use of the notes

or ask to inspect them at that time (the only time the transcript reflects that

Officer Williams consulted his notes) or at any point during the twenty pages

of the officer’s direct examination. Nor did Appellant express any interest in

the plainly-unconcealed notes during the first twenty pages of his cross-

examination of Officer Williams, during which he questioned the officer

extensively about discrepancies between his testimony that day and the 75-

49 investigation report he authored on September 3, 2011. After the officer

indicated that he did not review the 75-49 report before testifying, Appellant

asked what paperwork he had reviewed, and he indicated “The 48 A.” Id. at

44. Counsel stated that he had never seen the document, and asked for it to

be turned over immediately. Id. There was then disagreement about whether

the officer had reviewed a form 48 A, and whether the document was included

within mandatory discovery, and the Commonwealth represented that




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Appellant had copies of all paperwork that the Commonwealth had.2 Id. at

45-46.

        Appellant’s counsel then referred to the piece of paper Officer Williams

had with him on the stand and asked for the court to mark it as an exhibit,

stating “anything the officer writes down, we are entitled to.” Id. at 47. The

Commonwealth objected, as it was not an official document, but rather was a

page of notes the officer took as he read the discovery materials so he

“wouldn’t have to keep asking what happened.” Id. at 48. Appellant posited

that he could use the document for impeachment, and the Commonwealth

noted there was no inconsistent statement on which to impeach Officer

Williams.    Id. at 48-49.      Appellant observed that he could not determine

whether there were inconsistent statements until he was permitted to see

what statements were contained in the document. Id. at 49. The suppression

court ruled that the notes were not admissible as an exhibit, and granted

Appellant’s request that the officer not be allowed to use them. Id.

        Although Appellant did not expressly cite Rule 612, his objection and

request sought to invoke its provisions regarding inspection of the document

and its inclusion in the record. Therefore, we do not find that Appellant waived

his claim that the suppression court erred in refusing his request to examine

the notes upon which Officer Williams relied in testifying. Further, we conclude



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2   We have found no form 48 A in the certified record.

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that the suppression court did err in so refusing, and in declining to mark the

notes as an exhibit and include them in the record for purposes of appellate

review.

      Nonetheless, we agree with the Commonwealth that the error was

harmless. “[T]he doctrine of harmless error is a technique of appellate review

designed to advance judicial economy by obviating the necessity for a retrial

where the appellate court is convinced that a trial error was harmless beyond

a reasonable doubt.” Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa.

2012) (internal quotation marks omitted). Harmless error exists when the

Commonwealth shows, inter alia, that the error did not prejudice, or caused

only de minimis prejudice to, the defendant; or that the error could not have

contributed to the outcome based on the properly-admitted evidence.

Commonwealth v. Green, 162 A.3d 509, 519 (Pa.Super. 2017) (en banc).

      The resolution of Appellant’s suppression motion hinged upon the two

issues of whether the stop of the Jetta was supported by probable cause in

that the taillights were inoperable, and, if so, whether the contraband

recovered from the vehicle without a warrant was in plain view once the car

was lawfully stopped.    N.T. Suppression, 3/12/12, at 86-87.       Appellant’s

position was that, because no citation was issued for the inoperable taillights,

because Officer Williams was initially on the scene seeking to find drug-related

activity, and because Officer Williams knew Appellant had a history as a drug

dealer, Officer Williams lied when he testified that the brake lights were not


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functioning, and the stop was made purely to investigate whether Appellant

had drugs on him. Id. at 87-90.

      However, as the Commonwealth noted both at the suppression hearing

and in its brief before this Court, the inoperability of the taillights serving as

probable cause to make the stop was confirmed by Officer Moore, an officer

in the marked vehicle that initiated the stop, who explained that he exercised

his discretion to not issue a citation to the driver of the Jetta because the

driver offered a reasonable explanation.       Id. at 81-82.     Further, Officer

Williams’s testimony concerning both the taillights and the plain-view

observance of the suspected cocaine and paraphernalia was                 largely

corroborated by the 75-49 investigation report that he authored shortly after

the arrest. Id. at 94-95.

      There were some inconsistencies between Officer Willaims’s testimony

and the investigation report, most of which concerned the precise street

locations of Appellant and Officer Williams at various times during the incident.

Appellant utilized these discrepancies, as well as the fact that no citation was

issued for the vehicle code violation that was the premise of the stop, to attack

the credibility of Officer Williams’s testimony at the hearing. Id. at 31-34,

41-44, 49-52. Still the suppression court made the factual findings that the

stop was supported by the probable cause established by non-operating brake

lights, and that the drugs were in Officer Williams’s plain view when he

approached the passenger side of the vehicle after the lawful stop. Id. at


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101. Since the court’s faith in the accuracy of the officer’s testimony was not

shaken by his failure to recount details in a manner fully consistent with a

document prepared close in time to the events at issue, we fail to see how his

testimony proffered upon examination of, and presumably consistent with,

notes that he had taken for the purpose of testifying would have made any

difference.

      As such, and in light of the totality of the evidence before the

suppression court, we conclude that the court’s error in refusing to allow

Appellant to view the notes Officer Williams made after reviewing paperwork

that Appellant was provided, and its failure to make the notes part of the

record, would not have changed the outcome of the suppression hearing.

Accord Commonwealth v. Counterman, 719 A.2d 284, 296 (Pa. 1998)

(holding failure to allow defendant to review juvenile records of witnesses to

establish bias was harmless error where testimony was corroborated by other

witnesses). Accordingly, no relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/18



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