J-S53025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL RAY JAMES,
Appellant No. 318 WDA 2014
Appeal from the Judgment of Sentence of February 6, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000939-2013
BEFORE: DONOHUE, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 10, 2014
Appellant, Michael Ray James,1 appeals from the judgment of sentence
following his jury trial convictions for two counts each of possession with
intent to deliver a controlled substance (PWID) and possession of a
controlled substance, and one count each of endangering the welfare of a
child, possession of drug paraphernalia, and conspiracy.2 We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
____________________________________________
1
Appellant was tried jointly with his co-defendant, Deshuna Crosby. Crosby
is currently appealing her judgment of sentence in a companion case, 231
WDA 2014.
2
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A.
§ 4304, 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. § 903, respectively.
*Retired Senior Judge assigned to the Superior Court.
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On February 12, 2013, Appellant and a co-conspirator,
De’Shuna Crosby, were found by the U.S. Marshall’s
Fugitive Task Force in Room 327 of the Wyngate Hotel in
Summit Township[, Pennsylvania]. The Task Force was
serving an arrest warrant on Appellant after receiving a tip
that he was at the hotel.
When the Task Force arrived to serve the arrest
warrant, the officers knocked and announced their
presence. After a few minutes, Appellant answered the
door, stepped into the corridor and was placed in handcuffs.
Still inside the hotel room were Crosby and her four-
month old infant. Appellant claims to be the infant’s father.
The officers directed Crosby to step into the hallway.
Crosby initially ignored the request, walked back into the
room, picked up [a] car seat with the infant [inside of it], a
baby bag and a coat. Crosby then exited the room.
Crosby was asked whether she had anything illegal or
any weapons. Crosby denied possession of anything illegal
or having weapons and voluntarily began emptying her
pants’ pockets. The officers asked her if they could search
the car seat. Crosby consented and lifted the baby from the
car seat. In the car seat, the officers found three baggies of
white and/or tan substances later identified as 53.6 grams
of heroin and 128.9 grams of cocaine. There were two
plastic bags of cocaine and one plastic bag of heroin.
When Appellant realized the drugs were discovered, he
exclaimed, “-- those aren’t hers. They’re mine. That’s not
hers. It’s mine.” At trial [following the denial of Appellant’s
motion to suppress evidence], Appellant testified that he
knew the drugs were in the room and admitted that he was
in possession of the drugs. Appellant admitted to being a
drug dealer of marijuana.
Upon a search of Crosby’s person, the police found
almost $2[,]600.00 hidden inside Appellant’s bra. Crosby
was unemployed. In fact, Crosby was in the Erie County
Prison Work Release Program and only had permission to
leave to apply for jobs on that day.
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A digital scale used for weighing drugs and plastic
baggies used for packaging drugs were found in plain view
in the hotel room on top of the microwave. No drug
paraphernalia for immediate use of the drugs was found in
the hotel room or on Appellant or Crosby. Appellant and
Crosby denied using the drugs which were found and denied
possessing any paraphernalia for drug usage. There was no
evidence in the room to suggest that other people had been
there using drugs.
Appellant filed an [o]mnibus pre-trial [m]otion which
was denied by the Honorable Judge Ernest DiSantis by
[o]rder [on] September 30, 2013. After a [joint] jury trial
[with co-conspirator Crosby] on November 12th and 13th,
2013, Appellant was found guilty [of the aforementioned
charges].
* * *
Appellant was sentenced on January 10, 2014, as
follows:
Count 1: Conspiracy/[PWID]: 48 to 96 months
of incarceration concurrent with Count 2, a sentence
in the mitigated range;
Count 2: [PWID cocaine]: mandatory minimum
of 48 to 96 months [] of incarceration consecutive to
Count 5;
Count 3: Endangering the Welfare of a Child: 9
to 18 months of incarceration consecutive to Count
2, a sentence in the mitigated range;
Count 4: Possession of Drug Paraphernalia: 6 to
12 months of incarceration concurrent with Count 2;
Count 5: [PWID heroin]: mandatory minimum
[] of 5 [to] 10 years of incarceration consecutive to
Docket Number 930 of 2013;
Count 6: Possession of a Controlled Substance
[(heroin)]: Merged with Count 5;
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Count 7: Possession of a Controlled Substance
[(cocaine)]: Merged with Count 2.
On January 21, 2014, Appellant filed a [m]otion for
[r]econsideration of [s]entence or [s]entence [m]odification
which was denied by [o]rder on February 6, 2014.
On February 20, 2014, Appellant filed a [n]otice of
[a]ppeal [challenging] the [o]rders [dated] September 30,
2013, January 10, 2014 and February 6, 2014. Appellant
filed a [Pa.R.A.P.] 1925(b) [c]oncise [s]tatement of [errors]
[c]omplained of on [a]ppeal on March 7, 2014, and an
[a]mended [Rule 1925(b) statement] on March 14, 2014.
Trial Court Opinion, 3/25/2014, at 1-3 (record citations omitted).3
On appeal, Appellant presents the following issues for our review:
A. Whether the suppression court [erred] when it refused to
suppress the items found in the car seat, holding
Appellant’s child, following a warrantless search?
B. Whether the trial court [erred] in [its] pre-trial ruling to
allow the Commonwealth’s use of Appellant’s prior
testimony indicating that he was a marijuana dealer?
Appellant’s Brief at 4 (superfluous capitalization omitted).
In his first issue presented, Appellant argues that the suppression
court erred by failing to suppress the physical evidence obtained by police.
Id. at 11-15. More specifically, Appellant asserts that he had a reasonable
expectation of privacy in the baby car seat. Id. at 11-12. Appellant claims
that the trial court erred by finding “the search was still permissible as either
____________________________________________
3
Judge William R. Cunningham authored the March 25, 2014 opinion. On
March 28, 2014, Judge Ernest J, DiSantis, Jr. authored a supplemental
opinion pursuant to Pa.R.A.P. 1925(a) addressing Appellant’s suppression
issue, because he presided over Appellant’s omnibus pretrial motions.
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‘consented to’ by [] Crosby, a ‘search incident to a lawful arrest’ of []
Crosby, or pursuant to the ‘inevitable discovery doctrine.’” Id. at 12.
Appellant argues that officers did not have reasonable suspicion at the time
of the car seat search and that when Crosby took the baby out of the carrier
at the request of police, “[t]hose actions are consistent with a person
believing they had no choice.” Id. at 14. Appellant further claims that the
search could not be considered as incident to the arrest of either himself or
Crosby because: “1) If the supposed lawful arrest was [Appellant], he was
in handcuffs and unable to reach the car seat or utilize any items contained
therein; 2) If the supposed lawful arrest was [] Crosby, she was not under
arrest at the time of the search, nor did the officers know she was going to
be arrested at that point.” Id. Moreover, Appellant asserts that “[e]ven if
they had arrested [] Crosby before the search, no testimony was offered to
even suggest that the police would have searched the car seat as a matter
of course prior to turning the child over to the relative.” Id. at 15. Finally,
Appellant argues that if the search were incident to Crosby’s arrest, “there
[was] no justification for a warrantless searching of closed or concealed
areas outside the arrestee’s immediate control.” Id.
Our standard of review of an order denying suppression motion is well-
settled:
We are limited to determining whether the lower court's
factual findings are supported by the record and whether
the legal conclusions drawn therefrom are correct. We may
consider the evidence of the witnesses offered by the
Commonwealth, as [the prevailing party], and only so much
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of the evidence presented by [the] defense that is not
contradicted when examined in the context of the record as
a whole. We are bound by facts supported by the record
and may reverse only if the legal conclusions reached by the
court were erroneous.
Commonwealth v. Landis, 89 A.3d 694, 702 (Pa. Super. 2014) (citation
omitted).
In this case, the suppression court offered a plethora of grounds to
support its denial of Appellant’s motion to suppress. First, the suppression
court determined that Appellant had no expectation of privacy in the car seat
because he had voluntarily abandoned it. Trial Court Opinion, 3/28/2014, at
6-7. The suppression court further noted that Appellant was impermissibly
raising constitutional claims on behalf of his co-defendant, Crosby. Id. at 7.
Moreover, the suppression court determined that Crosby had actual or
apparent authority to voluntarily consent to search the car seat. Id. at 7-9.
The suppression court also determined that police had probable cause to
arrest Crosby because she was in violation of the terms of her work release
when police found her at an unauthorized location. Id. at 9. Finally, the
suppression court noted that, pursuant to the doctrine of inevitable
discovery, after both Appellant and Crosby were arrested, the police would
have discovered the narcotics hidden in the infant’s car seat. Id.
We agree with the suppression court that under the facts established
at Appellant’s suppression hearing Crosby and Appellant shared joint
authority over the car seat and that Crosby, through her actions, gave
implied consent for the officers’ search. Because we conclude that the
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officers effectuated a consensual search with the permission of one who
enjoyed common authority over the car seat, we hold that Appellant is not
entitled to relief on his first claim.
Here, the baby car seat was in a hotel room with equal access to
Appellant and Crosby. Moreover, the seat was used to transport an infant
parented by both Crosby and Appellant. “The law is well-settled that a
warrantless search may be made with the voluntary consent of a third party
who possesses ‘common authority over or other sufficient relationship to the
premises or effects sought to be inspected.’” Commonwealth v. Gibbons,
549 A.2d 1296, 1300 (Pa. Super. 1988) (citations omitted). “Common
authority rests on mutual use of the property by persons generally having
joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants [or co-possessors] has the right to
permit the inspection in his own right and that the others have assumed the
risk that one of their number might permit the common area to be
searched.” Id. at 1301 (ellipses and citation omitted).
“[A]ctual consent, implied consent, search incident to lawful arrest,
and exigent circumstances may negate the necessity of obtaining a warrant
before conducting a search.” Commonwealth v. Riedel, 651 A.2d 135,
139 (Pa. 1994). “[T]he Commonwealth bears the burden of establishing
that a consent is the product of an essentially free and unconstrained
choice—not the result of duress or coercion, express or implied, or a will
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overborne—under the totality of the circumstances.” Commonwealth v.
Caban, 60 A.3d 120, 130 (Pa. Super. 2012).
Here, the evidence showed that: 1) Appellant is the infant’s father; 2)
after Appellant was placed in handcuffs, Crosby remained in the hotel room
with the infant; 3) when asked to step into the hallway, Crosby came out
with the infant, inside the car seat, and a diaper bag. The testimony of the
circumstances establishes Crosby’s common authority over the car seat.
Thereafter, when asked if police could search her, Crosby “voluntarily began
to empty her pockets” and she “voluntarily bent over, pulled the baby out
and let [the officer] look at the car seat.” N.T., 9/30/2013, at 9. While she
did not verbally reply, Crosby’s actions show implied consent. Upon review
of the certified record, there is no additional evidence that Crosby was under
undue police coercion or duress at the time of the search. Accordingly, the
car seat was under the joint control of Appellant and Crosby and Crosby
voluntarily consented to a search. Thus, the search was permissible and the
suppression court properly denied relief. As such, Appellant’s first issue is
without merit.
In his second issue presented on appeal, Appellant claims the trial
court erred by allowing the Commonwealth to present Appellant’s prior
testimony, in an unrelated case, wherein he admitted to selling marijuana
and ecstasy. Appellant’s Brief at 16-18. Appellant claims that evidence of
selling marijuana and ecstasy was irrelevant to whether he possessed
cocaine and heroin with intent to deliver it. Id. at 17. Further, Appellant
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argues that the trial court erred in permitting the aforementioned prior act
evidence, because the potential for unfair prejudice outweighed its probative
value. Id. at 17.
On this issue, the trial court determined:
Appellant testified on direct appeal that he possessed the
drugs in question, but that he was not intending to sell
them. This testimony opened the door to Appellant’s prior
testimony under oath at a homicide trial to being a drug
dealer. Appellant cannot use his status as a drug dealer to
defend a homicide charge and then later deny his testimony
about being a drug dealer to defeat the present drug
dealing charges. Because of the patent inconsistencies,
Appellant would have been lying under oath at one of his
trials. Therefore, it was permissible impeachment evidence
to allow inquiry to Appellant’s prior sworn testimony
admitting to dealing drugs in Erie County.
Trial Court Opinion, 3/25/2014, at 8.
“It is axiomatic that evidence of prior crimes is not admissible for the
sole purpose of demonstrating a criminal defendant's propensity to commit
crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283
(Pa. Super. 2004)(citation omitted). However, this rule is not without
exception:
Evidence may be admissible in certain circumstances where
it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant's character. It is
well-established that reference to prior criminal activity of
the accused may be introduced where relevant to some
purpose other than demonstrating defendant's general
criminal propensity. Thus, evidence of other crimes may be
introduced to show[:]
1) motive; 2) intent; 3) absence of mistake or
accident; 4) a common scheme or plan; and 5)
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identity. The evidence may also be admissible to
impeach the credibility of a testifying
defendant; to show that the defendant has used the
prior bad acts to threaten the victim; and in
situations where the bad acts were part of a chain or
sequence of events that formed the history of the
case and were part of its natural development.
Id. (emphasis added).
Here, at the beginning of trial, the Commonwealth told the trial court
that it intended to use Appellant’s testimony from an unrelated trial wherein
Appellant admitted to selling marijuana “in the event that [Appellant]
testifie[d] … for impeachment purposes.” N.T., 1/12/213, at 5-6. In this
case, Appellant testified that an independent third party drug dealer rented
the hotel room where police found Appellant and Crosby. Id. at 108.
Appellant claimed that the drugs found by police were not his and he did not
intend to sell those drugs. Id. The Commonwealth was permitted to
impeach Appellant’s testimony. The fact that counsel for Appellant elicited
the testimony during direct examination, instead of the Commonwealth
cross-examining Appellant with the prior testimony concerning marijuana
sales, is a distinction without a difference. We discern no error and
Appellant’s second issue is without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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