J-A11037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARKIST KAREEM MOORE :
:
Appellant : No. 1396 MDA 2017
Appeal from the Judgment of Sentence July 18, 2016
in the Court of Common Pleas of Northumberland County
Criminal Division at Nos.: CP-49-CR-0000808-2015
CP-49-CR-0000819-2015
BEFORE: STABILE, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JULY 20, 2018
Appellant, Markist Kareem Moore, appeals from the judgment of
sentence imposed following his conviction of one count of possession with
intent to deliver a controlled substance (PWID), and two counts each of
possession of a controlled substance and possession of drug paraphernalia.1
We affirm.
We take the following facts and procedural history from our independent
review of the certified record. On June 22, 2015, Corporal Brian Primerano,
a City of Shamokin police officer, met with Curtis Groom, a known drug user,
as an informant, to conduct a controlled buy. (See N.T. Trial, 4/21/16, at 27-
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1 35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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30). After searching him and supplying him with ten dollars in buy money,
the officer and his partner, Officer Jarret Scandle, drove Groom to Appellant’s
residence in an unmarked vehicle. (See id. at 30-31). Officer Primerano
began videotaping Groom as he approached Appellant’s house and witnessed
Appellant’s girlfriend, Jaleesa Bickert, allow him inside. (See id. at 31). He
and Officer Scandle surveilled and videotaped the house for approximately
forty-five minutes, from 9:46 p.m. until 10:28 p.m., waiting for Groom to
return to their vehicle. (See id.). However, at 10:28 p.m., the officers
videotaped Groom and Appellant exit the house, and get into Appellant’s car.
(See id. at 31-32). The officers assumed that Appellant was driving Groom
home, so they drove to the informant’s residence, and parked in front of it.
(See id. at 32, 41-42). They did not see that Appellant dropped Groom off
approximately one block away from the home. Officer Primero testified that
Groom did not enter or exit his home during the roughly one or two minutes
the officers sat in front of the residence. (See id. at 32).
They immediately retraced their steps back to Appellant’s house, and
then drove the few blocks to the police station, where they met Groom, who
had walked the approximately seven or eight blocks from where Appellant had
dropped him. (See id. at 33). At the station, Groom turned over a packet of
what they believed to be spice (synthetic marijuana), which he stated he had
purchased from Appellant. (See id. at 33, 42). The police did not see
anybody on the streets that night. (See id. at 42). The jury viewed a DVD
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of the videotapes taken by Officer Primerano, and the Commonwealth
admitted it into evidence. (See id. at 36-41).
At trial,2 Groom testified consistently with Officer Primerano that the
officers searched him, gave him buy money, and took him to Appellant’s home
to obtain the spice, which he did. (See id. at 160-64). After the purchase,
Appellant gave Groom a ride home. (See id. at 166). Groom testified that,
after exiting Appellant’s car, he immediately walked directly to the police
station, talking to no one and stopping nowhere else on the way. (See id. at
167). Once there, he gave Officers Primero and Scandle the spice. (See id.).
On June 25, 2015, Officer Primerano executed a search warrant at
Appellant’s residence. (See id. at 51-52). He found “a metal smoking pipe”
and a packet of spice, labeled “Space,” in the bedroom. (Id. at 54; see id.
at 53-55). The officers also found empty packets in the living room and attic.
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2 Although Appellant does not raise it as an issue, for the sake of
completeness, we mention that Appellant appeared pro se in the trial court.
On November 6, 2015, the trial court acknowledged Appellant’s choice to
appear pro se and appointed stand-by counsel to attend all proceedings, and
to be available to assist him “by answering questions, offering advice on trial
tactics, and advice on methods of proceeding.” (Order, 11/06/15, at 1). On
April 12, 2016, approximately one-week before trial, Appellant filed a waiver
of counsel that the court approved after finding Appellant “made a knowing,
voluntary and intelligent waiver of his/her rights to [c]ounsel.” (Waiver of
Counsel, 4/12/16). Standby counsel, Edward Greco, Esquire, appeared at all
proceedings in the trial court, through sentencing, and Appellant represented
himself pro se. Newly appointed counsel, Richard R. Feudale, Esquire, filed
Appellant’s amended post-sentence motion, and represents Appellant in this
appeal.
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(See id. at 60-61). Forensic scientist Christina Fialkowski testified that the
substance found during the search of Appellant’s home contained chemical
MM2201, also popularly referred to as spice, a Schedule I controlled substance
pursuant to The Controlled Substance, Drug, Device and Cosmetic Act (Drug
Act), 35 P.S. §§ 780-101 - 780-144. (See id. at 129, 131). Similarly, forensic
scientist Dana Jackson testified that she tested the material purchased by
Groom, and that her results showed that the substance contained a Schedule
I synthetic cannabinoid. (See id. at 144).
Appellant’s girlfriend, Jaleesa Bickert, testified on Appellant’s behalf.
(See id. at 194). She stated that the spice and pipe found in the house
belonged to her. (See id. at 195). Appellant exercised his right not to testify.
(See id. at 202).
On April 21, 2016, the jury convicted Appellant of the previously
mentioned charges. On July 18, 2016,3 the court sentenced Appellant to an
aggregate term of not less than fifteen nor more than thirty-six months’
incarceration, plus costs and fines, with credit for time-served. (See N.T.
Sentencing, 7/18/16, at 12-13). On June 13, 2017, after multiple
continuances, the court granted Appellant’s post-sentence motions in part,
and denied them in part. Specifically, the court found that PWID and one
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3 The court imposed Appellant’s sentence in open court on July 18, 2016. It
filed the sentence on July 22, 2016.
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count of possession should have merged for sentencing purposes. It denied
post-sentence relief in all other respects. On August 1, 2017, the court
vacated Appellant’s sentence for possession, resulting in an aggregate term
of imprisonment of not less than twelve nor more twenty-four months’
incarceration. Appellant timely appealed.4
Appellant raises five questions for this Court’s review.
I. Since “spice” is not specifically listed as a controlled
substance[,] was it improper to charge Appellant for delivery of
the same or to use that term in the charging documents and
should verdicts stemming from an arrest that did not comport with
the [R]ules of [C]riminal [P]rocedure and verdicts so obtained
result in a violation of due process warranting reversal?
II. Did the improper charge and use of the term that the
substance was a narcotic improperly inflame and prejudice the
jury such that a new trial is warranted?
III. Did the Commonwealth violate Brady v. Maryland, 373
U.S. 83 (1963) in failing to provide in discovery or at trial the
alleged packaging material or a complete photograph thereof
which [A]ppellant contends would reveal a statement on the
package advising that the contents thereof were not prohibited by
law and did such violation result in the improper suppression of
admissible, exculpatory evidence relevant to the state of mind of
[Appellant] such that the omission of same deprived Appellant of
a fair trial warranting reversal?
IV. Did the verdicts of the jury lack the support of the weight of
the evidence, thereby warranting a new trial including but not
limited to improper, inflammatory references to narcotics to the
jury, the lack of a good chain of custody on the alleged controlled
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4 On September 20, 2017, Appellant filed a timely statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The court filed a statement
in lieu of formal opinion on November 1, 2017, and relied, in part, on the
reasons stated in its June 13, 2017 decision on Appellant’s post-sentence
motions. See Pa.R.A.P. 1925(a).
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substance(s), loss of surveillance on the [] [i]nformant, the lack
of credibility of the [informant], the failure of the police to arrest
at a time when the ‘buy’ money could have been preserved, the
testimony of Ms. Bickert accepting responsibility for the items of
issue found in the home and failure to enter a complete rendition
of the packaging material in evidence?
V. Was the evidence presented insufficient to convict beyond a
reasonable doubt warranting a new trial including but not limited
to improper, inflammatory references to narcotics to the jury, the
lack of a good chain of custody on the alleged controlled
substance(s), loss of surveillance on the [] [i]nformant, the lack
of credibility of the [informant], the failure of the police to arrest
at a time when the ‘buy’ money could have been preserved, the
testimony of Ms. Bickert accepting responsibility for the items of
issue found in the home and the failure to enter a complete
rendition of the packaging material in evidence?
(Appellant’s Brief, at 3).
In his first two issues, Appellant maintains that his arrest and conviction
for possessing and selling spice were improper where the Drug Act does not
identify spice as a controlled substance, and the Commonwealth’s improper
reference to narcotics at trial inflamed the jury. (See id. at 9-16).
Specifically, he claims that use of the term, spice, to identify the controlled
substance for which he was charged was insufficient to apprise him of the
nature of the charges against him. (See id. at 9). He also argues that “[t]he
use of the term ‘narcotics’ in his jury trial was inaccurate and its use . . . rung
a bell that could not be un-rung[.]” (Id. at 13). These issues are waived and
would not merit relief.
It is well-settled that “‘[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.’ Pa.R.A.P. 302(a).
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Moreover, [a] party cannot rectify the failure to preserve an issue by proffering
it in response to a Rule 1925(b) order.” Commonwealth v. Watson, 835
A.2d 786, 791 (Pa. Super. 2003) (case citations and some internal quotation
marks omitted).
In the case sub judice, Appellant did not challenge either the charging
documents or the Commonwealth’s reference to narcotics at trial. In fact, the
citations that Appellant provides support that conclusion. (See Appellant’s
Brief, at 13-14) (citing N.T. Trial, 4/21/16, at 20-22, 56, 127). Additionally,
our review of the portions of the trial transcript that Appellant cites, shows
that the use of the word, narcotic, was in no way prejudicial.5 Therefore, he
failed to preserve his first and second issues for our review, and they are
waived. See Watson, supra at 791.6
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5At the pre-sentence hearing, Appellant stated that he did not give Groom a
narcotic. (See N.T. Hearing, 2/01/16, at 15). However, this is not an
objection to the word, narcotic, but a statement by a defendant.
6 For sake of completeness, we additionally observe that Appellant’s second
issue is waived because he fails to provide pertinent law and discussion thereof
to support his claim that the prosecution committed misconduct by allowing
use of the word, narcotic, at trial. (See Appellant’s Brief, at 12-15); see also
Pa.R.A.P. 2119(a)-(b). Additionally, we note that neither issue one nor two
would merit relief.
The information and the criminal complaint put Appellant on notice of
what crime he was being charged with committing, whatever term the
document used to describe the illegal drug. See Commonwealth v.
Soboleski, 617 A.2d 1309, 1312 (Pa. Super. 1992), appeal denied, 634 A.2d
224 (Pa. 1993) (“The purpose of the information or citation is to inform the
accused of the crimes charged-to give sufficient notice of the charges so as to
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In his third issue, Appellant argues that the Commonwealth committed
a Brady violation by not producing “complete[,] front and back, pictures of
the package[s]” of spice. (Appellant’s Brief, at 17) (emphasis omitted). He
maintains that, had the Commonwealth provided him with such photographs,
the outcome of the proceeding would have been different because they would
have shown that the packets contained statements such as, “legal for sale.”
(Id. at 17; see id. at 17-19). This issue does not merit relief.
With respect to whether Brady applies to a particular factual scenario,
the standard of review is de novo, because it is a question of law.
[T]he United States Supreme Court in Brady held that due
process is violated when the prosecution withholds evidence
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provide him or her with the opportunity to prepare a defense, and to define
the issues for trial.”) (citations omitted). Further:
a defendant is not entitled to relief for a claim of prosecutorial
misconduct unless the unavoidable effect of the prosecutor’s
actions is to so prejudice the jury that a true verdict cannot be
rendered because the existence of bias and hostility generated by
the conduct makes it impossible to weigh the evidence in a neutral
manner.
Commonwealth v. Gease, 696 A.2d 130, 134 (Pa. 1997), cert. denied, 522
U.S. 935 (1997). Here, Appellant provides absolutely no evidence that use of
the word, narcotic, so prejudiced him that he is entitled to a new trial. The
citations he provides generally refer to narcotics, but it is difficult to see how
this would prejudice Appellant. (See Appellant’s Brief, at 13-14) (citing N.T.
Trial, at 20-22, 56, 127) (Counsel asking officer how long he has been working
in narcotics investigation; Officer Primerano describing classes he attended,
including narcotics investigation and professional decision making in narcotics
investigations, and testifying that he participated in hundreds of narcotics
investigations; Counsel asking if officer recognized spice based on his training
and experience in narcotics; forensic scientist Christina Fialkowski testifying
she has performed between 7,000 to 8,000 narcotics analyses).
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favorable to a defendant. Impeachment evidence, as well as
exculpatory evidence, falls within the Brady rule.
To establish a violation of Brady, a defendant is required to
demonstrate: (1) evidence was suppressed by the
Commonwealth, either willfully or inadvertently; (2) the evidence
was favorable to the defendant; and (3) the evidence was
material, in that its omission resulted in prejudice to the
defendant. Conversely, [t]he mere possibility that an item of
undisclosed information might have helped the defense, or might
have affected the outcome of the trial does not establish
materiality in the constitutional sense. In determining whether
a reasonable probability of a different outcome has been
established, the question is not whether the defendant would
more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.
Thus, a reasonable probability of a different result is established
when the government’s suppression of evidence undermines
confidence in the outcome of the trial. . . . In engaging in this
analysis, a reviewing court is not to review the undisclosed
evidence in isolation, but, rather, the omission is to be evaluated
in the context of the entire record.
Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa. 2011) (citations and
quotation marks omitted; emphases added).
Here, in his amended post-sentence motion, Appellant argued:
31. [Appellant] complains that he did not receive complete
pictures of the alleged packet of suspected spice.
32. He believes this may have been material to his case
because such packets may contain statements such as “legal for
sale” or “does not contain illegal materials” and the failure to do
so was prejudicial to his due process right warranting acquittal as
[a] remedy.
33. This issue of the failure to provide complete front and back
pictures of the package and product description is critically
important because if the product was misbranded, then it would
have been vitally material to a consideration of the mens rea or
state of mind of [Appellant].
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(Amended Post Sentence Motion, 3/24/17, at unnumbered page 7 ¶¶ 31-33)
(emphases added).
Appellant’s allegations that the complete pictures of the packets of spice
found in his home “may contain” certain statements or “may” have been
material to his case do not establish the constitutional materiality required for
a Brady violation. See Dennis, supra at 308. Moreover, reviewing this
purported evidence in light of the entire record, not only was it immaterial,
but its absence does not undermine “confidence in the outcome of the trial”
where there was testimony and videotape evidence support a finding that
Appellant sold spice to Groom. Id. (citation omitted).7 Appellant’s third issue
does not merit relief.
In Appellant’s fourth and fifth issues, he argues that the evidence was
insufficient and that his conviction was against the weight of the evidence.
(See Appellant’s Brief, at 19-24). He argues, “there is not credible testimony
or other evidence of such weight as to satisfy the burden of proof[.]” (Id. at
19). More specifically, he claims that, because the police briefly lost sight of
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7Nor is Appellant’s mens rea argument legally persuasive. The Drug Act does
not only prohibit the knowing possession and delivery of illegal drugs, but the
knowing delivery and possession of controlled substances without being
registered to do so. See 35 P.S. §§ 780-113(a)(16), (30). Therefore,
whether Appellant could have thought that spice was legal based on what the
package might have said is irrelevant where Appellant was not registered to
sell a controlled substance.
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Groom, the Commonwealth could not establish Appellant delivered the spice
to him, and that it failed to prove he constructively possessed the drugs and
paraphernalia found in his home where Jaleesa Bickert testified they were
hers.8 (See id. at 23). Appellant’s claims lack merit.
When we review a weight-of-the-evidence challenge, we do
not actually examine the underlying question; instead, we
examine the trial court’s exercise of discretion in resolving the
challenge. This type of review is necessitated by the fact that the
trial judge heard and saw the evidence presented. Simply put,
[o]ne of the least assailable reasons for granting or denying a new
trial is the lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial should be
granted in the interest of justice. A new trial is warranted in this
context only when the verdict is so contrary to the evidence that
it shocks one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
Of equal importance is the precept that, [t]he finder of fact
. . . exclusively weighs the evidence, assesses the credibility of
witnesses, and may choose to believe all, part, or none of the
evidence.
Commonwealth v. Rayner, 153 A.3d 1049, 1056 (Pa. Super. 2016), appeal
denied, 169 A.3d 1046 (Pa. 2017), cert. denied, 138 S.Ct. 976 (2018)
(citations and quotation marks omitted).
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8 Appellant’s arguments go to the weight of the evidence only, i.e., he claims
that the jury should have weighed the surveillance and Bickert’s testimony
differently. (See Appellant’s Brief, at 23). Therefore, he has waived any
sufficiency claim on this basis. He also has waived his sufficiency issue by
failing to identify in his Rule 1925(b) statement “the element or elements upon
which [he] alleges that the evidence was insufficient.” Commonwealth v.
Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citation omitted); (see also
Appellant’s Rule 1925(b) Statement, 9/20/17, at 1).
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The standard we apply in reviewing sufficiency of the
evidence is whether in viewing all the evidence admitted at trial
in light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. Any doubts concerning an
appellant’s guilt are to be resolved by the trier of fact unless the
evidence was so weak and inconclusive that no probability of fact
could be drawn therefrom. The trier of fact while passing upon
credibility of witnesses . . . is free to believe all, part or none of
the evidence. Additionally, [t]he Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Garland, supra at 344-45 (citations and quotation marks omitted).
Instantly, the Commonwealth charged Appellant with possession of a
controlled substance by a person not registered, possession of paraphernalia,
and PWID. (See Information, 8/31/15). Therefore, under the facts of this
case, it was required to prove that Appellant possessed spice and drug
paraphernalia, and that he intended to deliver spice to Groom. See 35 P.S.
§§ 780-113(a)(16), (30), (32).
In addressing Appellant’s post-trial motions, the trial court found:
[Appellant] . . . relies upon his contention that the verdict does
not rest upon disinterested third party witness testimony;
however, the circumstances of the controlled buy comport with
the witnesses’ testimony.
At trial, there was extensive testimony by Corporal Brian
Primerano as to the use of an informant to perform a controlled
buy of drugs from [Appellant]. The Commonwealth showed a
number of videos which recorded the informant going into
[Appellant’s] residence, exiting the residence with [Appellant] and
the two of them getting into [Appellant’s] car on the night of June
22, 2015. The informant also testified that he performed a
controlled buy and bought $10 of spice from [Appellant] on June
22, 2015. Further testimony by police detailed a subsequent
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search of [Appellant’s] residence whereby a glass pipe, a packet
of [s]pice, and two empty packets of spice were recovered.
Jaleesa Bickert, [Appellant’s] girlfriend and mother to his
children, testified on behalf of [Appellant]. She stated the glass
pipe and packet of spice belonged to her. The jury considered and
ultimately rejected her testimony. Th[e] court did not find the
jury’s verdict to be so contrary to the evidence as to shock one’s
sense of justice.
(Trial Court Opinion, 6/13/17, at unnumbered page 3).
Based on the foregoing, we discern no abuse of discretion and we decline
Appellant’s invitation to re-weigh the evidence. See Rayner, supra at 1056.
Appellant’s weight of the evidence claim does not merit relief. Additionally,
viewing the above evidence in the light most favorable to the Commonwealth,
as verdict winner, we conclude that it establishes that Appellant delivered
spice to Groom, and that he possessed the drug and paraphernalia in his
home. Therefore, the evidence was sufficient to support Appellant’s
conviction, and any sufficiency claim would not merit relief. See Garland,
supra at 344-45. Appellant’s fourth and fifth issues lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/20/2018
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