J-S36009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DETRICK S. DAWKINS
Appellant No. 1274 MDA 2015
Appeal from the Judgment of Sentence September 9, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003795-2012
CP-22-CR-0004529-2012
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED MAY 05, 2016
Appellant, Detrick S. Dawkins, appeals from the September 9, 2014
aggregate judgment of sentence of 27 to 54 months’ incarceration, imposed
by the trial court after Appellant was convicted of possession with intent to
deliver, and pled guilty to flight to avoid apprehension.1 Upon careful
consideration, we affirm.
The trial court thoroughly detailed the facts of record, which we adopt
and incorporate herein. Trial Court Opinion, 10/19/15, at 2-7. In addition,
the trial court recounted the procedural posture of this case as follows.
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 5126(a), respectively.
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[Appellant] was charged at docket number
4529-CR-2012 with possession with intent to deliver
and possession of a firearm prohibited. A jury trial
was held on these two offenses on August 14 and
15, 2014. [Appellant] was found guilty of Count 1—
possession with intent to deliver, and was found not
guilty of Count 2 – possession of a firearm
prohibited.
At docket number 3795-CR-2012, [Appellant]
entered into a negotiated plea agreement on
September 9, 201[4]. Pursuant to such agreement,
the Commonwealth withdrew Count 1 – escape, and
[Appellant] pled guilty to Count 2 – flight to avoid
apprehension, in exchange for a recommended
sentence of twenty-one (21) to forty-two (42)
months of imprisonment to run concurrent with the
sentence received at docket number 4529-CR-2012.
Following [Appellant]’s guilty plea at docket
3795-CR-2012, [Appellant] was sentenced as
follows: At docket 4529-CR-2012 – Count 1
(possession with intent to deliver) – twenty-seven
(27) to fifty-four (54) months of imprisonment (plus
fine and costs). At docket 3795-CR-2012 – Count 2
(flight to avoid apprehension) twenty-one (21) to
forty-two (42) months of imprisonment (plus fine
and costs), to run concurrently with the sentence
imposed at docket 4529-CR-2012.
On September 19, 2014, [Appellant], through
his attorney, filed a post-trial motion to modify
sentence and on September 22, 2014, filed a motion
for time credit. Th[e trial c]ourt denied the motion
to modify and granted [Appellant] time credit of 347
days on docket 4529-CR-2012 and 206 days on
docket 3795-CR-2012.
[Appellant] filed a notice of appeal at docket
4529-CR-2012 on October 22, 2014. On February
23, 2015, the Superior Court dismissed the appeal,
as no brief had been filed on [Appellant]’s behalf.
On May 4, 2015, [Appellant] filed a pro se
PCRA petition, and Jennifer E. Tobias, Esq. was
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appointed as PCRA counsel. Attorney Tobias filed a
supplemental PCRA petition requesting that
[Appellant]’s appellate rights be reinstated nunc pro
tunc. Th[e trial c]ourt granted the request, and a
notice of appeal was filed on July 24, 2015.
Trial Court Opinion,2 10/19/15, at 1-2 (footnote omitted).
On appeal, Appellant presents four issues for review.
1. Whether the trial court erred by denying the
Appellant’s suppression motion?
2. Whether the Appellant’s constitutional rights were
violated when the trial court denied the Appellant
his right to confront and cross-examine the
confidential informant (CI)?
3. Whether the Commonwealth failed to provide
sufficient evidence at trial to support the guilty
verdict on the charge of PWI[D]?
4. Whether the verdict was against the weight of the
evidence presented at trial?
Appellant’s Brief at 5.
In his first issue, Appellant asserts that the trial court erred in denying
his suppression motion. Our review of a trial court’s suppression ruling is
guided by the following.
Our standard of review in addressing a
challenge to the denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
consider only the evidence of the Commonwealth
and so much of the evidence for the defense as
remains uncontradicted when read in the context of
the record as a whole. The suppression court’s legal
conclusions are not binding on an appellate court,
whose duty it is to determine if the suppression court
properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to
our plenary review. Commonwealth v. Jones, 605
Pa. 188, 988 A.2d 649, 654 (2010) (citations,
quotations, and ellipses omitted). Moreover,
appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.
See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1083–
1087 (2013).
Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015), appeal
granted, --- A.3d ---, 2016 WL 1247784 (Pa. 2016).
Instantly, Appellant asserts that “there were discrepancies concerning
the basis for the search warrant, along with withholding of relevant
information to the judge signing the warrant.” Appellant’s Brief at 11.
Appellant specifically contends that the judge signing the warrant “should
have been told that the CI had recently been convicted of theft, and the
Commonwealth had promised to nolle pros the charge in exchange for his
cooperation.” Id. Appellant maintains that the confidential informant had
“a motive to provide false information to the police regarding the drug
transactions.” Id. at 12.
The Commonwealth responds that “[t]he record supports the
suppression court’s finding that the search warrant was based upon probable
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cause when the Commonwealth … relied upon the observations of police
officers who witnessed the CI make a phone call for a drug deal and then
witnessed that CI go into the home where the arranged deal took place.”
Commonwealth’s Brief at 9.
The trial court, as the finder of fact, explained its agreement with the
Commonwealth’s position as follows.
It is the defense’s position that the lack of reliable
information given to Judge Clark regarding the CI
undermined the probable cause determination as to
the CI’s veracity and vested interest. The standard
for evaluating probable cause is as follows:
[W]hether probable cause exists for the
issuance of a search warrant is the totality of
the circumstances test. … A magistrate is to
make a practical common-sense decision
whether, given all the circumstances set forth
in the affidavit before him, including the
veracity and basis of knowledge of persons
supplying hearsay information, there is a fair
probability that contraband or evidence of a
crime will be found in a particular place.
Commonwealth v. Hawkins, 45 A.3d 1123, 1127
(Pa. Super. 2012) (quoting Commonwealth v.
Gindlesberger, 706 A.2d 1216, 1219 (Pa. Super.
1997) (citations omitted)). In determining the
validity of a search warrant, the “reviewing court is
limited to supporting the issuing authority’s decision
to approve the warrant.” Id. (quoting
Commonwealth v. Cramutola, 450 Pa. Super.
345, 676 A.2d 1214, 1216 (1996)).
Pursuant to the totality of the circumstances
test, th[e trial c]ourt concludes that there was
adequate information to provide a basis for
concluding that probable cause was established to
issue the search warrant. There were two controlled
buys that were conducted at the 316 Hummel Street
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home, the subject of the search warrant. The two
buys were conducted while an officer observed the
CI entering the home on both occasions, and on
each occasion he had been searched before entering
the residence. … Based on the controlled buys,
there was clearly a fair probability that evidence of a
crime would be found at 316 Hummel Street.
Trial Court Opinion, 10/19/15, at 7-8.
Our review of the record confirms the factual findings and legal
conclusions of the trial court. Thus, we find no merit to Appellant’s
suppression issue.
In his second issue, Appellant argues that his constitutional rights
were violated when the trial court denied him the right to confront and
cross-examine the confidential informant. Before addressing the merits of
this argument, we note that Appellant cites just one case, Barber v. Page,
390 U.S. 719, 725 (1968), which generally states that “the right to
confrontation is basically a trial right,” but is otherwise inapplicable to the
specific circumstances of Appellant’s case. Appellant’s Brief at 13-14. It is
well-settled that we will not consider issues where an appellant fails to cite
to any legal authority or otherwise develop the issue. Commonwealth v.
McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal denied, 65 A.3d
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413 (Pa. 2013). We therefore find that Appellant has waived this argument
and decline to address it further.3
With regard to Appellant’s third issue, where Appellant asserts that the
Commonwealth failed to present sufficient evidence to support his conviction
of possession with intent to deliver, the Commonwealth asserts waiver. The
Commonwealth states that Appellant failed to specifically allege “the
elements of PWID that the Commonwealth failed to prove at trial” in his
Pennsylvania Rule of Appellate Procedure 1925(b) statement.
Commonwealth’s Brief at 17. The Commonwealth cites Pennsylvania Rule of
Appellate Procedure 1925(b)(4)(ii), and Commonwealth v. Tyack, 128
A.3d 254 (Pa. Super. 2015) to support its contention.
If [an] appellant wants to preserve a claim that the
evidence was insufficient, then the 1925(b)
statement needs to specify the element or elements
upon which the evidence was insufficient. This Court
can then analyze the element or elements on appeal.
Where a 1925(b) statement does not specify the
allegedly unproven elements, the sufficiency issue is
waived on appeal.
Commonwealth’s Brief at 18, citing Tyack, supra at 260.
Our review of Appellant’s Statement of Matters Complained of on
Appeal Pursuant to Pa.R.A.P. 1925(b) confirms in part the Commonwealth’s
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3
We nonetheless acknowledge the trial court’s statement that “[a]lthough
[the trial court’s] May 16, 2013 order denied [Appellant’s] motion to compel
disclosure of the identity of the CI, the CI was actually identified prior to
trial. Therefore, the defense could have called the CI as a witness if his
whereabouts were known.” Trial Court Opinion, 10/19/15, at 8 n.2.
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averment that Appellant failed to “specifically allege in his statement of
errors the elements of PWID that he was going to challenge on appeal.” Id.
at 20. In the body of his Rule 1925(b) statement, Appellant simply asks,
“Whether the Commonwealth failed to provide sufficient evidence at trial to
support the guilty verdict?” Statement of Matters Complained of on Appeal
Pursuant to Pa.R.A.P. 1925(b), 8/20/15, at 1. However, Appellant attached
a more detailed “Argument” to his Rule 1925(b) statement, which includes a
paragraph discussing our appellate standard of review, as well as Appellant’s
assertion that “since there was no evidence or testimony concerning the
elements needed for PWI[D] … the elements have not been proven beyond a
reasonable doubt.” Id. at 5, ¶ 3. Because we interpret this last sentence as
Appellant claiming there was no evidence at all to support any of the
elements to support his conviction, we address his sufficiency argument on
the merits. In doing so, we find it to be unavailing.
There is sufficient evidence to sustain a conviction when the evidence
admitted at trial, and all reasonable inferences drawn therefrom, viewed in
the light most favorable to the Commonwealth as verdict-winner, are
sufficient to enable the fact-finder to conclude that the Commonwealth
established all of the elements of the offense beyond a reasonable doubt.
Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007).
Furthermore, the entire trial record is evaluated and all evidence received
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against the defendant is considered, being cognizant that the trier of fact is
free to believe all, part, or none of the evidence. Id.
Here, Appellant was convicted of possession with intent to deliver a
controlled substance, defined as follows.
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner
not registered or licensed by the appropriate State
board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113(a).
Appellant claims “there was not enough evidence to prove that [he]
possessed the cocaine or that he was aware of the cocaine” and references
discrepancies in the trial testimony. Appellant’s Brief at 15-17. Our review,
however, indicates that Appellant’s sufficiency claim is unsupported by the
record. In addition to the testimony of Officers Stewart and Flythe, who
both participated in the two controlled buys that occurred on May 10 and 21
of 2012, the trial court accurately referenced the following.
The drug buys involving [Appellant] took place at
316 Hummel Street. A search of that home yielded
a cell phone with photos of [Appellant] with a
number matching the one the CI called for a drug
buy, bags of crack cocaine and powder cocaine,
baggies, a digital scale, razor blades, … a large
amount of cash, a piece of mail with [Appellant’s]
name and the 316 Hummel Street address, a social
security card with [Appellant’s] name, and a
baggage check tag with [Appellant’s] last name. The
circumstantial evidence shows that [Appellant] was
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in constructive possession of the drugs at issue. The
power and intent to control the contraband was
evident from the totality of the circumstances.
Vargas, [108 A.3d 858 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015)].
The record also amply supports [Appellant’s]
intent to deliver the controlled substances. The large
sums of cash, a scale, baggies, and other drug
paraphernalia found at 316 Hummel Street is
indicative of an intent to deliver. Furthermore, the
expert testimony provided by Detective Goshert
revealed that, given a factual scenario where the
aforementioned items were found, his conclusion
would be that the cocaine at issue was possessed
with the intent to deliver.
Trial Court Opinion, 10/19/15, at 11.
Based on the foregoing, there was sufficient evidence for the jury to
convict Appellant of possession of a controlled substance with the intent to
deliver, such that Appellant’s third issue is without merit.
In his fourth and final issue, Appellant contends that his conviction for
possession of a controlled substance with the intent to deliver was against
the weight of the evidence. Initially, we note that pursuant to Pennsylvania
Rule of Criminal Procedure 607, a claim that the verdict was against the
weight of the evidence shall be raised with the trial judge in a motion for a
new trial: (1) orally, on the record, at any time before sentencing; (2) by
written motion at any time before sentencing; or (3) in a post-sentence
motion.
Our review of the August 15, 2014 trial notes of testimony following
Appellant’s jury conviction, as well as the September 9, 2014 notes of
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testimony from sentencing, indicate that Appellant did not make an oral
motion for a new trial based on the weight of the evidence. Further,
although the record shows that Appellant filed a post-sentence motion to
modify sentence, in that motion he solely requested that his sentences run
concurrently. Appellant’s Post-Trial Motion to Modify Sentence, 9/19/14, at
1.4 Likewise, Appellant filed a motion for time credit, but did not raise a
weight claim. Motion for Time Credit, 9/23/14.5 Accordingly, we find that
Appellant’s weight claimed is waived. Commonwealth v. Thompson, 93
A.3d 478, 490 (Pa. Super. 2014) (the failure to properly preserve a weight
of the evidence claim will result in waiver, even if the trial court addresses
the issue in its opinion).
In sum, we conclude that Appellant’s issues are either without merit or
waived, and thus affirm the September 9, 2014 judgment of sentence.
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4
The trial court denied Appellant’s post-sentence motion to modify sentence
by order dated September 22, 2014.
5
The trial court granted Appellant’s motion for time credit by order dated
September 26, 2014.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2016
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