J-S60036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL BRAN FLEMING                       :
                                               :
                       Appellant               :   No. 608 MDA 2019

       Appeal from the Judgment of Sentence Entered December 7, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0001537-2017


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED NOVEMBER 26, 2019

        Michael Bran Fleming (Fleming) appeals from the judgment of sentence

entered on December 7, 2018, by the Court of Common Pleas of Berks County

(trial court) following his convictions for one count of possession with intent

to deliver and two counts of possession of a controlled substance. 1 Fleming

contends that the trial court erred by denying his motion in limine to introduce

a third-party’s statements against interest at trial.2 We affirm.


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*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(30), (a)(16).

2 We review a trial court’s ruling on the admission or exclusion of evidence for
an abuse of discretion. Commonwealth v. Benson, 10 A.3d 1268, 1274
(Pa. Super. 2010). “[A]n abuse of discretion will be found if the trial court’s
judgment was manifestly unreasonable or the result of partiality, prejudice,
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       On December 9, 2016, Fleming was the front-seat passenger in a vehicle

that was pulled over for speeding in Robeson Township. (Notes of Testimony

(N.T.), 11/13/18 – 11/14/18, at 72, 74). The driver of the vehicle was Darius

Linton (Linton) and a third individual was in the back seat. (N.T. at 73-74).

Officer Brandon Breitenstein determined that both Fleming and Linton had

outstanding warrants and they were removed from the vehicle. (N.T. at 75-

77).   When Fleming exited the vehicle, Officer Breitenstein saw a bag of

cocaine on the seat where Fleming had been sitting. (N.T. at 77, 135-36).

He also observed an odor of unburnt marijuana when he approached Fleming’s

seat and spoke with him. (N.T. at 80-81).

       Fleming initially denied having any narcotics on his person, but soon

admitted to having more drugs in his pants. (N.T. at 81-82, 84). Fleming

removed a bag containing 13 small bags of cocaine or crack cocaine, two bags

of methamphetamine, and a bag of marijuana from his boxers. (N.T. at 84-

86, 136-37).      A small bag of marijuana was also recovered between the

passenger seat and door of the vehicle. (N.T. at 87, 94). Officer Breitenstein

then searched the vehicle and found baking soda and a measuring cup in the

trunk. (N.T. at 89-90). The other occupants of the vehicle did not have any

drugs or paraphernalia on their persons. (N.T. at 77, 88, 118-19).



____________________________________________


bias, or ill will as shown by the evidence of record.” Id. (internal quotations
and citation omitted).


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       Fleming filed a motion in limine prior to trial seeking to introduce

statements allegedly made by Linton implicating himself in the possession of

the narcotics. See Motion in Limine at 5. He argued that Linton’s statements

were reliable because Linton was driving the vehicle, had the car key, and

would have had better access to the trunk where the alleged paraphernalia

was found.3 (N.T. at 6, 11-12). Fleming also argued that Linton had multiple

prior convictions for drug-related offenses and was a more sophisticated

criminal than Fleming. (N.T. at 8, 177-78). The Commonwealth argued that

Linton’s statements to arresting officers had sufficient indicia of reliability to

be admitted, but the statements allegedly made to Fleming and his brother

lacked reliability and trustworthiness. (N.T. at 183-84). The trial court denied

the motion in limine and Fleming was subsequently convicted of the above-

mentioned offenses.4 (N.T. at 185, 253-54).

       It is not entirely clear from the record what alleged incriminating

statements Fleming sought to introduce at trial.         While Fleming argued

repeatedly that Linton had made statements to Officer Breitenstein at the time

of the arrest, to Fleming himself, and to Fleming’s brother, indicating that all

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3 Fleming was found not guilty of one count of Possession of Drug
Paraphernalia, 35 P.S. §§ 780-113(a)(32). (N.T. at 253).

4 Fleming filed a timely notice of appeal following the denial of his post-
sentence motion, and both Fleming and the trial court have complied with
Pennsylvania Rule of Appellate Procedure 1925.




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the narcotics found during the stop belonged to him, he never made a specific

offer of proof presenting the substance of those statements to the trial court

for its consideration.5 However, we glean from the record that Linton told

Officer Breitenstein during the arrest that Fleming might have narcotics.6

(N.T. at 102). He also allegedly spoke to Fleming while they were waiting to

see the magisterial district judge and urged him to admit to possessing the

drugs. (N.T. at 10, 177-78, 184). The record does not reflect the content of

the   statements     Linton    allegedly       made   to   Fleming’s   brother   or   the

circumstances under which he allegedly made them. (N.T. at 10).

       A statement may be admitted under the hearsay exception for

statements against interest if the declarant is unavailable as a witness 7 and

the proponent of the statement establishes that:

       (A) a reasonable person in the declarant’s position would have
       made [the statement] only if the person believed it to be true
       because, when made, it was so contrary to the declarant’s
____________________________________________


5 Fleming’s counsel repeatedly referenced statements to Officer Breitenstein
that were in his police report, but this police report was not entered as an
exhibit at the hearing on the motion in limine.

6 Even though the trial court ruled that all of Linton’s alleged statements were
inadmissible, counsel for Fleming and the Commonwealth questioned Officer
Breitenstein regarding this statement at trial. (N.T. at 102-03, 112-13).
Thus, to the extent that Fleming argues that the trial court erred in excluding
this statement from trial, the issue is moot.

7 Linton had a number of outstanding arrest warrants at the time of Fleming’s
trial, and the Commonwealth and Fleming agreed that Linton was unavailable
under the Rule. (N.T. at 7, 179, 181).




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        proprietary or pecuniary interest or had so great a tendency to
        invalidate the declarant’s claim against someone else or to expose
        the declarant to civil or criminal liability; and

        (B) [the statement] is supported by corroborating circumstances
        that clearly indicate its trustworthiness, if it is offered in a criminal
        case as one that tends to expose the declarant to criminal liability.

Pa. R.E. 804(b)(3). In Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012),

our Supreme Court held that statements made directly to homicide detectives

in a Mirandized,8 videotaped confession had sufficient indicia of reliability to

be admissible as statements against penal interest. Id. at 1177. In that case,

a codefendant gave a lengthy confession providing many specific details of a

shooting, describing the drug operation for which he and his brothers worked,

and claiming that the defendant had taken no part in the shooting.                  Id.

Because the statements were so detailed and exposed the codefendant to

significant criminal liability, they were sufficiently reliable to be admissible in

the defendant’s trial. Id. at 1177-78.

        Regarding Linton’s statements allegedly made directly to Fleming,

Fleming’s counsel asserted during argument on the motion in limine that

Fleming and Linton had a discussion soon after their arrests. After they were

taken into custody on outstanding warrants at the traffic stop, they sat

together while waiting to appear in front of the magisterial district judge. (N.T.

at 10, 177-78, 184). At that time, Linton allegedly urged Fleming to say that



____________________________________________


8   Miranda v. Arizona, 384 U.S. 436 (1966).

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all the drugs in the vehicle belonged to him. Id. Linton told Fleming that if

he admitted to possessing the narcotics, he would be sentenced to boot camp,

as that was the sentence Linton had received for a similar conviction in the

past.   (N.T. at 177-78).   Fleming’s counsel sought to have Fleming testify

regarding this conversation.

        The trial court did not abuse its discretion in determining that this

alleged interaction lacked the indicia of reliability necessary to render the

statements admissible, as the brief conversation carries none of the indicia of

reliability required by the Rule.    These statements were allegedly made

directly to Fleming, who had a significant interest in the statements’ admission

at trial. Linton was not speaking to someone with any authority over who

would be charged with possession of the drugs found in the vehicle, and he

did not expose himself to criminal liability by making a statement to Fleming.

Further, Linton was not the registered owner of the vehicle and no drugs or

paraphernalia were recovered from his person. (N.T. at 77, 96). The drugs

recovered in the vehicle were found directly on Fleming’s body, on the seat

where Fleming had been sitting, and between Fleming’s seat and the door.

(N.T. at 77-78, 83-84, 87, 94). None of these circumstances suggests that

Linton’s alleged statements were truthful, and the trial court did not abuse its

discretion in excluding them from trial.

        As to the statements allegedly made to Fleming’s brother, Fleming did

not present any evidence or even an offer of proof regarding the


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circumstances under which the statements were made. (N.T. at 10). It is not

clear when the statements were made, how much time had passed between

the incident and Linton’s alleged statement, what specifically Linton said, or

where he made the statement. As a result, the trial court was unable to assess

the totality of the circumstances surrounding Linton’s statements to determine

if they presented sufficient indicia of reliability. In absence of any evidence of

reliability, the trial court did not abuse its discretion in excluding these

statements from trial.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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