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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A05032-16
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.
-2-
J-A05032-16
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
-3-
J-A05032-16
[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.
-4-
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.
-5-
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,
-6-
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)
-7-
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.
-8-
J-A05032-16
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
- 11 -
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.
- 12 -
J-A05032-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
- 13 -