J-A05032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KENYATTA KNUCKLES,

                            Appellant                No. 569 EDA 2015


          Appeal from the Judgment of Sentence December 22, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015417-2013


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 15, 2016

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following Appellant’s conviction at a

non-jury trial of possession with the intent to deliver a controlled substance

(crack cocaine) and possession of a controlled substance (crack cocaine). 1

Appellant argues (1) the trial judge’s verdict is against the weight of the

evidence; (2) the trial court erred in denying Appellant’s oral motion for

extraordinary relief based on the Commonwealth’s failure to disclose

material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) Appellant’s convictions

should have merged for sentencing purposes. We affirm.
____________________________________________


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



*Former Justice specially assigned to the Superior Court.
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       The relevant facts and procedural history have been aptly set forth in

the trial court’s opinion, in relevant part, as follows:

              [Appellant] was arrested and. . . charged with [one count
       of] Possession with Intent to Deliver (“PWID”) and [one count
       of]     Knowing      and     Intelligent  Possession    (“[simple
                       2
       possession]”).[ ]
              [Counsel was appointed and a] waiver trial was conducted
       before th[e] [trial] court on October 23, 2014. At the conclusion
       of trial, [Appellant] was found guilty of both charges. Viewing
       the evidence in the light most favorable to the Commonwealth[,]
       as verdict winner, the following facts were proved at trial: On
       October 23, 2013, Philadelphia Police Officer Thomas Clarke
       oversaw the use of a confidential informant (“CI”) to purchase
       narcotics at 3154 E Street. Police Officer Regino Fernandez
       assisted as back-up.
              The officers met with the CI to conduct a controlled buy
       from [Appellant] at 3154 E Street. Officer Clarke testified that
       on October 23, 2013, he searched the CI and he was negative
       for any money, narcotics, or contraband. The CI was then given
       prerecorded buy money. (N.T., 10/23/14, p. 11).           The CI
       knocked on the front door of 3154 E Street and [Appellant]
       answered. After a brief conversation, the CI entered the house.
       A short time later[,] the CI emerged with [Appellant], they
       shook hands, and the CI immediately returned to Officer Clark[e]
       who was parked on the east side looking over to the property.
       Officer Clark[e] recovered four (4) Ziploc packets stamped with
       an eight ball symbol, filled with a white-chunky substance from
       the CI.       Officers Clark[e] and Fernandez returned to
       headquarters where Officer Fernandez conducted a NIK test E on
       one of the packets; it tested positive for cocaine. (N.T.,
       10/23/14, pp. 11-13). At trial, Officer Fernandez identified
       [Appellant] as the man who opened the door at 3154 E Street
       for the CI. (N.T., 10/23/14, pp. 46-48).
              On November 12, 2013, Officers Clarke and Fernandez
       returned to 3154 E Street to conduct another controlled buy.
       Using the same CI as was used on October 23, 2013, Officer
____________________________________________


2
  Appellant was also charged with one count of possession of marijuana, 35
P.S. § 780-113(a)(31); however, the trial court acquitted Appellant on this
charge.



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     Clarke searched the CI and he was given prerecorded buy
     money. The CI then approached [Appellant] and two other black
     males on the porch of 3154 E Street. After a brief conversation
     between [Appellant] and the CI, [Appellant] entered the house,
     came back out a short time later and placed something in the
     CI’s open palm. The CI then handed over the prerecorded buy
     money. (N.T., 10/23/14, pp. 13-14). The CI left [Appellant]
     and was immediately picked up by Officer Clarke. The CI again
     turned over four (4) Ziploc packets stamped with the eight ball
     symbol. Officer Fernandez conducted a NIK test G on one of the
     packets; it tested positive for cocaine. (N.T., 10/23/14, pp. 14-
     15).
           On November 18, 2013, Officers Clarke and Fernandez
     returned to 3154 E Street to conduct another controlled buy.
     The same CI and pre-buy procedure was used for the third
     surveillance. The CI approached 3154 E Street and spoke to a
     woman at the door who pointed to the other side of the street.
     Officer Clarke observed the CI meet with a man who was
     standing on the 600 block of Wishart Street. After a brief
     conversation, the man was observed walking to an abandoned
     house on the south side of the street, pulling back damaged
     siding underneath a boarded up window, grabbing an object, and
     removing something from it. The man returned to the CI, and
     an exchange was made with the prerecorded buy money. (N.T.,
     10/23/14, pp. 15-16). The CI immediately returned to Officer
     Clark[e] and handed him four (4) Ziploc packets. The four (4)
     Ziploc packets, stamped with the eight ball symbol, matched the
     packets from the previous two buys and also tested positive for
     cocaine. (N.T., 10/23/14, pp. 16-17). Officer Fernandez testified
     that the CI informed him that the seller on November 18,
     2013[,] was not [Appellant]. The CI described that seller as a
     “medium build black man.” The CI informed Officer Fernandez
     that this seller was selling for “the other guy.” (N.T., 10/23/14,
     p. 41).
           In the interim, on November 13, 2013, Police Officer Louis
     Hardy was conducting his own surveillance of 3154 E Street and
     using a different CI to purchase narcotics at 3154 E Street. On
     this date, Officer Hardy testified that [Appellant] sold his CI four
     (4) Ziploc packets with “black markings on them,” containing a
     white-chunky substance; the CI purchased narcotics from




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       [Appellant] on two separate occasions.3 On each occasion, these
       packets tested positive for cocaine. Neither Officer Hardy, [ ]
       Officer Fernandez[,] [n]or Officer Clarke were aware of the
       other’s investigation. Officer Hardy’s CI said that the seller’s
       name was “Tone” and provided Officer Hardy with the seller’s
       telephone number. Officer Hardy did not investigate the phone
       number, nor did he compare that phone number with
       [Appellant’s] phone number.        Officer Hardy identified the
       November 13, 2013[,] seller as [Appellant] in the courtroom.
       These were the only two occasions Officer Hardy saw
       [Appellant]. (N.T., 10/23/14, pp. 26-30). Officer Fernandez
       testified that Officer Hardy contacted him on November 13,
       2013[,] about the surveillance and controlled buy he and Officer
       Clarke had conducted. Officer Hardy turned the narcotics bought
       by his CI on November 13, 2013[,] over to Officer Fernandez.
       (N.T., 10/23/14, pp. 32-33).
              On November 20, 2013, Officers Clarke and Fernandez
       returned to 3154 E Street with a search warrant that was
       prepared by Officer Fernandez based on the surveillance
       conducted by himself, Officer Clarke, and Officer Hardy. Officer
       Clarke testified that when they arrived at the address,
       [Appellant] was by himself on the attached porch of his
       neighbor’s house at 3152 E Street. [Appellant] was observed
       continuously “fumbling through the trashcan.” Back-up units
       were notified of [Appellant’s] location and when they arrived,
       [Appellant] ran off. He was arrested on the 600 block of Wishart
       Street. Inside the trashcan that [Appellant] was observed
       “fumbling around in” was a potato chip bag containing 15 clear
       jars of marijuana. (N.T., 10/23/14, pp. 17-20). Officer
       Fernandez testified that when the search warrant was executed,
       they did not find any prerecorded buy money, narcotics, or any
       proof that [Appellant] lived at 3154 E Street[.] (N.T., 10/23/14,
       p. 44).
              [Appellant] was found guilty of [PWID] and simple
       possession related to the sales made on October 23rd, November
       12th, and November 13th. [Appellant] was found not guilty of. . .
       the November 18th controlled buy, as well as the possession
       charge from November 20th. (N.T., 10/23/14, pp. 63-64).

____________________________________________


3
 The CI used by Officer Hardy was not the same CI that Officer Fernandez
and Officer Clarke used during their surveillance.



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J-A05032-16


              [Appellant proceeded to a sentencing hearing on December
       22, 2014.] [Prior to] sentencing, defense council [sic] [made] a
       motion for extraordinary relief asking for a new trial. Council
       [sic] argued that Officer Hardy had previously misidentified a
       suspect in another case in April, 2014, and the Commonwealth
       failed to disclose that information to the defense. Furthermore,
       the defense argued that the Commonwealth’s failure to disclose
       this misidentification was a Brady violation requiring a new trial.
       [Appellant’s] motion was denied. (N.T., 12/22/14, pp. 3-6, 10).

Trial Court Opinion, filed 8/7/15, at 1-5 (footnotes added and omitted)

(footnotes in original).

       At the conclusion of the hearing, the trial court sentenced Appellant to

one year to two years in prison for PWID and two years of reporting

probation for simple possession, the sentences to run concurrently.

Appellant filed a timely, counseled post-sentence motion, which the trial

court denied by order entered on January 28, 2015.                 This timely appeal

followed, and all Pa.R.A.P. 1925 requirements have been met.

       Appellant’s first contention is the trial judge’s verdict is against the

weight of the evidence.4 Specifically, he avers the police officers’ testimony

identifying him as the person from whom the CIs bought crack cocaine on

October    23,    November      12,     and    November    13,    2013,   was    vague,

contradictory,     and    unreliable.    Further,   he    notes   that    the   officers’

identification testimony was undermined by the fact that, when Appellant’s

person was searched incident to his arrest on November 20, 2013, the police
____________________________________________


4
 Appellant preserved this issue in his post-sentence motion, as well as in his
Pa.R.A.P. 1925(b) statement. See Pa.R.Crim.P. 607; Pa.R.A.P. 1925.



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J-A05032-16


found no narcotics on Appellant’s person.      Further, Appellant notes that

when the house at 3154 E Street was searched on November 20, 2013, the

police found no narcotics, money, drug paraphernalia, or evidence linking

Appellant to the house.

             A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the [fact-finder] is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses, and a
      new trial based on a weight of the evidence claim is only
      warranted where the . . . verdict is so contrary to the evidence
      that it shocks one's sense of justice. In determining whether
      this standard has been met, appellate review is limited to
      whether the trial judge's discretion was properly exercised, and
      relief will only be granted where the facts and inferences of
      record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 610 Pa. 264, 276, 18 A.3d 1128, 1135-36

(2011) (citations and quotation marks omitted).     In reviewing a weight of

the evidence claim, “[a]n appellate court cannot substitute its judgment for

that of the finder of fact.”   Commonwealth v. Small, 559 Pa. 423, 435,

741 A.2d 666, 672-73 (1999).

      In its opinion, in addressing Appellant’s weight of the evidence claim,

the trial court acknowledged there were inconsistencies presented in the

officers’ testimony; however, the trial court indicated it found credible the

officers’ trial testimony identifying Appellant as the person who sold drugs to

the CIs on October 23, November 12, and November 13, 2013.           See Trial

Court Opinion filed 8/7/15 at 6-7. Based on the fact three police officers,

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J-A05032-16


who viewed Appellant on numerous occasions, positively identified Appellant

as the person they observed engage in transactions with their respective CI,

we find no abuse of discretion. See Houser, supra.

       Further, as to Appellant’s suggestion the verdict is against the weight

of the evidence since there was a lack of contraband discovered by the

police when they searched the house at 3154 E Street, as well as Appellant’s

person incident to his arrest, we note that these searches occurred on

November 20, 2013, a week after the police last utilized a CI in a controlled

buy with Appellant. Given the lapse in time, as well as the fact the evidence

tended to show Appellant varied his drug dealing habits to avoid detection,

we find no abuse of discretion in the trial court’s rejection of Appellant’s

weight of the evidence claim. See id.

       Appellant’s next contention is the trial court erred in denying his oral

motion for extraordinary relief5 based on the Commonwealth’s failure to

disclose material, exculpatory evidence in violation of Brady.       Specifically,

Appellant avers the Commonwealth violated Brady by failing to disclose to

the defense that, in an unrelated narcotics case, Officer Hardy misidentified

a suspect while under oath.6         Appellant contends this evidence is material

____________________________________________


5
   Pa.R.Crim.P. 704(B) permits a trial judge to hear an oral motion for
extraordinary relief prior to sentencing. In the case sub judice, Appellant
made the instant oral motion prior to sentencing. N.T., 12/22/14, at 3-10.
6
   In arguing his motion, Appellant’s counsel asserted that, subsequent to
trial, he “learned through a colleague” that Officer Hardy had misidentified a
(Footnote Continued Next Page)


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J-A05032-16


since it “bore directly on [Appellant’s] chosen defense[,]” i.e., that the police

in this case misidentified Appellant as the perpetrator. Appellant’s Brief at

20. He alleges “[t]he fact that, on a previous occasion, Officer Hardy could

not tell the difference between two defendants whose only similarity was

their height and complexion would have discredited his instant identification

of [Appellant] and bolstered [Appellant’s] chosen defense.” Appellant’s Brief

at 21. He further alleges that “[t]he evidence of Officer Hardy’s prior

misidentification      would    have    seriously   jeopardized   an   already   shaky

conviction by further undermining the link between the observed drug sales

and [Appellant].” Id. at 22. Appellant avers the Commonwealth’s failure to

disclose this “invaluable impeachment evidence” requires a new trial.              We

disagree.

           The law governing alleged Brady violations is well-settled.
      In Brady, the United States Supreme Court held that “the
      suppression by the prosecution of evidence favorable to an
                       _______________________
(Footnote Continued)

defendant in an unrelated case. N.T., 12/22/14, at 5-6. On appeal,
Appellant points to, and provides the preliminary notes of testimony for, the
unrelated case of Commonwealth v. Felder, 51 CR 00028942014. In
Felder, at an initial preliminary hearing, Officer Hardy identified the man he
observed selling drugs as “the defendant with the blue and white striped
shirt.” N.T., 3/26/14, at 5. However, at the conclusion of the hearing, the
public defender informed the court that the man seated at the defense table,
who Officer Hardy identified as the suspect, was not, in fact, Mr. Felder. Id.
at 19. The public defender noted that an incorrect defendant, Durrell Smith,
had mistakenly sat at the defense table for Mr. Felder’s preliminary hearing,
and Officer Hardy had misidentified Mr. Smith as being Mr. Felder. Id. At
Mr. Felder’s second preliminary hearing, Officer Hardy admitted he had
previously identified a different man as being the suspect in the Felder case.
N.T., 4/10/14, at 17-18. Ultimately, Mr. Felder’s case was dismissed.



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     accused upon request violates due process where the evidence is
     material either to guilt or to punishment, irrespective of the good
     faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83
     S.Ct. at 1196–97. The Supreme Court subsequently held that
     the duty to disclose such evidence is applicable even if there has
     been no request by the accused, United States v. Agurs, 427
     U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), and
     that the duty may encompass impeachment evidence as well as
     directly exculpatory evidence, United States v. Bagley, 473
     U.S. 667, 676–77, 105 S.Ct. 3375, 3380–81, 87 L.Ed.2d 481
     (1985). Furthermore, the prosecution's Brady obligation extends
     to exculpatory evidence in the files of police agencies of the
     same government bringing the prosecution. Kyles v. Whitley,
     514 U.S. 419, 438, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490
     (1995); Commonwealth v. Burke, 566 Pa. 402, 781 A.2d
     1136, 1142 (2001).
            On the question of materiality, the Court has noted that
     “[s]uch evidence is material ‘if there is a reasonable probability
     that, had the evidence been disclosed to the defense, the result
     of the proceeding would have been different.’” Strickler v.
     Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d
     286 (1999) (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at
     3383). The materiality inquiry is not just a matter of determining
     whether, after discounting the inculpatory evidence in light of
     the undisclosed evidence, the remaining evidence is sufficient to
     support the [fact finder’s] conclusions. “Rather, the question is
     whether ‘the favorable evidence could reasonably be taken to
     put the whole case in such a different light as to undermine
     confidence in the verdict.’” Strickler, 527 U.S. at 290, 119
     S.Ct. at 1952. “Thus, there are three necessary components that
     demonstrate a violation of the Brady strictures: the evidence
     was favorable to the accused, either because it is exculpatory or
     because it impeaches; the evidence was suppressed by the
     prosecution, either willfully or inadvertently; and prejudice
     ensued.” Burke, 781 A.2d at 1141.
            Importantly, the Court has noted that the duty imposed
     upon the prosecution under Brady is a limited one. See, e.g.,
     Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846,
     51 L.Ed.2d 30 (1977) (“[t]here is no general constitutional right
     to discovery in a criminal case, and Brady did not create one”).
     This Court has also recognized Brady's limited requirements,
     and has noted that Brady does not grant a criminal defendant
     unfettered access to the Commonwealth's files. See
     Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883, 887

                                    -9-
J-A05032-16


      n.3 (2004) (defendant has no general right under                    the
      Constitution or Brady to search Commonwealth files)[.]

Commonwealth v. Lambert, 584 Pa. 461, 470-71, 884 A.2d 848, 853-54

(2005) (citations omitted). Moreover, there is no Brady violation when the

defense   has    equal   access   to   the   allegedly   withheld   evidence.   See

Commonwealth v. Spotz, 587 Pa. 1, 97, 896 A.2d 1191, 1248 (2006) (“It

is well established that no Brady violation occurs where the parties had

equal access to the information or if the defendant knew or could have

uncovered such evidence with reasonable diligence[ ]” (internal citation

omitted)).

      In explaining the reasons it found no Brady violation, and accordingly

denied Appellant’s oral motion for extraordinary relief, the trial court noted

the following:

             The misidentification made by Officer Hardy in another
      unrelated case is not what this case rests on; the finding of guilt
      is based on the evidence collected by all three Officers involved
      in this case. Even if the Defense was [made] aware [in this
      case] of Officer Hardy’s misidentification from a prior case, that
      still would not have changed the fact that the Ziploc bags that he
      retrieved from his surveillance operations of [Appellant] matched
      the Ziploc bags retrieved by Officer Clarke who was in charge of
      a separate surveillance.        Officers Clarke and Fernandez
      witnessed [Appellant] sell those bags to their CI on several
      different occasions [and they positively identified him at trial].
             Moreover, there is no Brady violation because the Defense
      could have discovered this information through their own
      reasonable due diligence. The Defense handled the preliminary
      hearing where Officer Hardy’s misidentification was discovered;
      they therefore had the same opportunity and access to that
      information as the Commonwealth did.           It is also not the
      Commonwealth’s duty or responsibility to know every detail and
      nuance from prior [unrelated] cases. Nor are they obligated to

                                       - 10 -
J-A05032-16


      research other unrelated matters on the chance that an officer
      involved in their case may or may not have misidentified
      someone in the past. Therefore, because [Appellant] had equal
      access to Officer Hardy’s [prior, unrelated] misidentification
      through reasonable due diligence, and the fact that the
      contraband retrieved by Officer Hardy matched what was
      recovered by Officer Clarke, there was no Brady violation[.]

Trial Court Opinion, filed 8/7/15, at 8-9.

      We conclude the trial court did not err in finding the Commonwealth

did not violate Brady, and thus, the trial court properly denied Appellant’s

motion for extraordinary relief.

      Appellant’s final contention is that his convictions for PWID and simple

possession should have merged for sentencing purposes.

      This Court has previously determined:

             A claim that the trial court imposed an illegal sentence by
      failing to merge sentences is a question of law. Accordingly, our
      standard of review is plenary. The merger doctrine is essentially
      a rule of statutory construction designed to determine whether
      the legislature intended for the punishment of one offense to
      encompass that for another offense arising from the same
      criminal act or transaction. The Supreme Court h[as] held [that]
      in all criminal cases, the same facts may support multiple
      convictions and separate sentences for each conviction except in
      cases where the offenses are greater and lesser included
      offenses. The Supreme Court further defines ‘the same facts' as
      follows:
             any act or acts which the accused has performed and
             any intent which the accused has manifested,
             regardless of whether these acts and intents are part
             of one criminal plan, scheme, transaction or
             encounter, or multiple criminal plans, schemes,
             transactions or encounters.

Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.Super. 2008)

(internal citations and some quotations omitted). Further, “[n]o crimes shall

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J-A05032-16


merge for sentencing purposes unless the crimes arise from a single criminal

act and all of the statutory elements of one offense are included in the

statutory elements of the other offense.” Commonwealth v. Spruill, 622

Pa. 299, 304, 80 A.3d 453, 456 (2013) (citing 42 Pa.C.S.A. § 9765). “If the

offenses stem from two different criminal acts, merger. . .is not required.”

Williams, 958 A.2d at 527 (citation omitted).

     In the case sub judice, the Commonwealth proved beyond a

reasonable doubt that Appellant engaged in four separate transactions of

crack cocaine: one on October 23, 2013, one on November 12, 2013, and

two on November 13, 2013.     Moreover, Appellant sold crack cocaine to two

separate CIs, who were involved in separate police investigations (i.e.,

Appellant sold crack cocaine to the CI used by Officers Clarke and Fernandez

on October 23, 2013, and November 12, 2013, whereas Appellant sold crack

cocaine to the CI used by Officer Hardy twice on November 13, 2013).

     Based on the aforementioned, we find the evidence supports the

conclusion that Appellant’s conviction on one count of PWID and his

conviction on one count of simple possession do not merge since the crimes

did not arise from a single criminal act. See Williams, supra.

     For all of the foregoing reasons, we affirm.

     Affirmed.




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J-A05032-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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