95 A.3d 279
Pa. Super. Ct.
2014

COMMONWEALTH OF PENNSYLVANIA, Appellee v. ALEXANDER KINARD, Appellant

No. 3036 EDA 2011

IN THE SUPERIOR COURT OF PENNSYLVANIA

FILED MARCH 04, 2014

2014 PA Super 41

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON and WECHT, JJ.

J-E04004-13. Appeal from the Judgment of Sentence October 12, 2011, Court of Common Pleas, Delaware County, Criminal Division at No. CP-23-CR-0004556-2010

DISSENTING OPINION BY DONOHUE, J.:

The recordings of phone calls made by Appellant Alexander Kinard (“Kinard“) while incarcerated and awaiting trial appear to demonstrate that Kinard was conversant in the language of drug dealers. Maybe the phone calls even establish that Kinard was dealing drugs from prison. These, however, are not the issues presently before this Court. Instead, the issue before this Court is whether the recordings of his phone calls provide any relevant evidence to prove that he was in constructive possession of drugs found in the home of Jessica Morrison on June 17, 2010, or whether Kinard conspired with Morrison on that day in her efforts to sell drugs in her neighborhood. Because the certified record clearly shows that these recordings have no relevance to the issue before us, and were instead admitted at trial solely to show Kinard‘s propensity in general to sell drugs, I must respectfully dissent.

Evidence of a defendant‘s other bad acts is not admissible to show a defendant‘s bad character or his propensity for committing criminal acts. Pa.R.E. 404(b)(1); Commonwealth v. Hairston, __ A.3d __, 2014 WL 241866, at *4 (Pa. January 21, 2014); Commonwealth v. Lark, 518 Pa. 290, 308, 543 A.2d 491, 499 (1988). According to our Supreme Court,

[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence[.]

Commonwealth v. Spruill, 480 Pa. 601, 604-05, 391 A.2d 1048, 1049-50 (1978) (quotations and citations omitted). Pennsylvania courts have recognized narrow exceptions to the rule if the evidence of other bad acts tends to prove motive, opportunity, intent, preparation, common plan or scheme, knowledge, or absence of mistake or accident. Pa.R.E. 404(b)(2); Hairston, __ A.3d at __, 2014 WL 241866, at *4. When one or more of these exceptions apply, the trial court may admit the evidence “only if the probative value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).

Here the Majority, adopting the trial court‘s rationale, concludes that the recordings of Kinard‘s phone calls were properly admitted pursuant to two of these exceptions, common plan or scheme and absence of mistake or accident. According to the Majority, the recordings tend to prove a common plan or scheme relevant to Kinard‘s constructive possession of the drugs found in Morrison‘s house, and that Kinard‘s constructive possession was not the result of accident or mistake.

The tests for application of these two exceptions are similar. Evidence of other bad acts is admissible to prove a common plan or scheme “where the two crimes are so related that proof of one tends to prove the others.” Commonwealth v. Ross, 57 A.3d 85, 103 (Pa. Super. 2012) (quoting Commonwealth v. Elliott, 549 Pa. 132, 145, 700 A.2d 1243, 1249 (1997)), appeal denied, __ Pa. __, 72 A.3d 603 (2013). When ruling upon the admissibility of evidence under the common plan or scheme exception, the trial court must examine the details and surrounding circumstances of each incident “to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator.” Commonwealth v. Gordon, 652 A.2d 317, 323 (Pa. Super. 1994), affirmed, 543 Pa. 513, 673 A.2d 866 (1996). In Elliott, for example, the appellant was accused of sexually assaulting and then killing a young woman he approached at 4:30 a.m. just outside a particular club (Purgatory) in Philadelphia. Id. at 145, 700 A.2d at 1249. Our Supreme Court affirmed a trial court‘s decision to permit three other young women to testify that the appellant had similarly accosted each of them as they were leaving the same Purgatory club in the early morning hours, and that he had then physically and/or sexually assaulted them. Id. at 146, 700 A.2d at 1250-51. Our Supreme Court concluded that testimony was admissible under the common plan or scheme exception because of the “close similarity between these assaults.” Id.

Likewise, evidence may be admitted under the “absence of mistake or accident” exception where “the manner and circumstances” of two crimes are “remarkably similar.” Commonwealth v. Boczkowski, 577 Pa. 421, 439-40, 846 A.2d 75, 86 (2004). In Boczkowski, our Supreme Court held that evidence related to the death of the defendant‘s first wife was admissible in the trial against him for the murder of his second wife, where both women died of drowning under very similar circumstances. Id. Our Supreme Court thus ruled that the evidence was relevant to prove that the second death was a homicide, rather than (as the defendant claimed) an accident. Id.; see also Commonwealth v. Sherwood, 603 Pa. 92, 115, 982 A.2d 483, 497 (2009) (evidence of prior beatings by defendant relevant to show lack of accident or mistake at trial of beating death of his stepdaughter), cert. denied, 559 U.S. 1111 (2010); Commonwealth v. Fisher, 682 A.2d 811, 816 (Pa. Super.) (prior agreement not to sell property he did not own was admissible at defendant‘s trial for real estate fraud scheme), appeal denied, 546 Pa. 691, 687 A.2d 376 (1996).

To prove constructive possession of drugs, the Commonwealth has the burden of proof to show “the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.” Commonwealth v. Johnson, 611 Pa. 381, 407, 26 A.3d 1078, 1093 (2011) (quoting Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983)). One or more actors may jointly constructive possess an item if it is found in an area of joint control and equal access. Commonwealth v. Murdrick, 510 Pa. 305, 309, 507 A.2d 1212, 1214 (1986). In Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548 (1992), our Supreme Court refused to find constructive possession of illegal drugs when “the record demonstrates nothing more than that appellant was present in an apartment in which drugs were found.” Id. at 309, 507 A.2d at 1214.

It is well settled that facts giving rise to mere ‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case of constructive possession. See Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); and Commonwealth v. Tirpak et al., 441 Pa. 534, 272 A.2d 476 (1971). More is required.

Id. (emphasis added).

Aside from the testimony of Jessica Morrison, who was the target of the ongoing drug investigation, the Commonwealth offered no evidence to support a finding that Kinard was in constructive possession of the drugs found in Morrison‘s home. Police never observed Kinard at Morrison‘s home during the surveillance that led to the warrant, and the search of Morrison‘s home did not produce any evidence, such as mail in Kinard‘s name or any belongings, linking him to the house as a resident or frequent visitor. When the police found him in Morrison‘s home, Kinard did not have any drugs or drug paraphernalia on his person. The police found Kinard in a second-floor bathroom, far from the kitchen where the drugs were found. His lack of proximity to the kitchen failed to provide any proof of his knowledge of the presence of the drugs and, accordingly, any ability to exercise conscious dominion and control over them. Kinard‘s defense was that the Commonwealth could not prove any connection between him and the drugs, and, hence, no constructive possession.

The trial court admitted the recorded phone calls as evidence of the contrary, based upon the “common plan or scheme” and “absence of mistake or accident” exceptions. Given the above-discussed tests for application of these two exceptions, the certified record would have to contain evidence to show that the crimes discussed on the recordings were “so distinctive and so nearly identical as to become the signature of the same perpetrator,” and/or were “remarkably similar” to the crimes with which he is charged here.

In an attempt to meet this standard, the Majority states that the drug transactions discussed on the recordings “were similar, if not identical, to the drug transactions for which he is charged.” Majority Opinion at 9. The Majority does not cite to any evidence in this case to support its assertion, however, and based upon my thorough review of the certified record, there is no such evidence. Morrison testified that Kinard came to her home and sold her $200 worth of narcotics for $180, and left a bag of crack cocaine and some marijuana at her home for her to sell to make up the $20 shortfall. Trial Court Opinion, 1/24/2012, at 3. The recordings of Kinard‘s phone calls, in significant contrast, contain no discussion about any specific drug transactions. Because no specific drug transactions are discussed, there is of course no discussion of instances of Kinard (directly or through intermediaries) going to anyone‘s home, providing or selling narcotics to anyone, accepting less than full payment, or leaving behind additional drugs to sell.

To the contrary, the recordings are of largely unintelligible phone conversations with two unidentified females that cover a variety of topics, including Kinard‘s apparent efforts to retain an attorney to represent him on currently pending charges. There are references to broad drug distribution activity, including mentions of the sale of drugs generally and of various amounts of money (all well in excess of the $180 alleged transaction with Morrison). As indicated, however, there are no discussions of specific drug transactions between Kinard and anyone else, and thus nothing on the recordings describes transactions that are “nearly identical” or “remarkably similar” to the alleged transaction with Morrison. Simply put, the recordings do not evince any “common plan or scheme” and do not demonstrate an “absence of mistake or accident.” Instead, at most the recordings establish that Kinard sells drugs on a regular basis. Pursuant to Rule 404(b)(1), however, the admission of evidence of Kinard‘s general propensity to sell drugs cannot be admitted to prove that he sold drugs to Morrison on June 17, 2010.

The Majority‘s focus on the “coded” terminology used by Kinard on the recordings as a basis for a common plan or scheme is a red herring, as the record reflects no relationship between the terminology Kinard used in the recorded conversations and the conduct for which he was arrested. When questioned about her knowledge of drug transaction terminology, Morrison testified that, for example, “cat food” refers to crack cocaine, “cream of wheat” refers to “soft cocaine,” and “chicken” refers to money. Id. at 35-36. Morrison did not, however, implicate Kinard as a person who employed such terminology during his alleged drug transaction with her on the day in question.

The record evinces only Morrison‘s testimony that she asked Kinard for “ten twenties,” and that in response he provided her with two hundred dollars worth of crack cocaine. It is not even clear from the certified record that “ten twenties” is coded terminology, since the Commonwealth‘s expert, Officer Timothy Bernhardt, testified that drug dealers refer to a $20 bag of cocaine as a “dub.” Id. at 117.1 Officer Bernhardt even testified that if this term were not used, a drug dealer would know right away that “this person has no idea what they‘re talking about” and would immediately hang up and ignore the request. Id. at 118. Because Morrison testified that she asked for ten $20 bags of cocaine by saying she needed “ten twenties” instead of “ten dubs,” neither Morrison nor Kinard may have used any coded terminology in their alleged conversation on June 17, 2010.

Even if Kinard and Morrison did speak in coded language on that date, however, it still would not provide a common scheme or plan that would permit the admission of the recordings of Kinard‘s prison phone calls. Evidence that Kinard used coded language when talking about drugs on the phone recordings does not establish any common scheme or plan with respect to his alleged transaction with Morrison on the day in question. Officer Bernhardt testified that the coded language is used by most all drug dealers and drug users, and thus Kinard‘s use of the coded language would not be conduct “which is distinctive and so nearly identical as to become the signature of the same perpetrator.” Gordon, 652 A.2d at 323. Instead, at most Kinard‘s knowledge and use of coded language demonstrated for the jury that he is a drug dealer in general, thus resulting in an improper inference that he had a propensity to engage in the drug transaction described by Morrison.

The Majority also contends that the recordings of Kinard‘s phone calls (including his use of coded language) demonstrates that he was “not innocently in Morrison‘s home, but rather was there conducting business.” Majority Opinion at 9. Frankly, this is nothing more than thinly veiled support for the improper admission of propensity evidence in violation of Rule 404(b)(1). The rationale is merely that because Kinard is a drug dealer in general, the jury was entitled to assume that he was likewise selling drugs on June 17, 2010 at Morrison‘s home. Rule 404(b)(1), of course, strictly forbids such an inference. Moreover, whether Kinard‘s presence at Morrison‘s home was “innocent” or not is entirely irrelevant to the issue of his constructive possession of the drugs found there on that day, as the Commonwealth had the burden of proof to show that Kinard had the power to control the contraband and the intent to exercise that control. Johnson, 611 Pa. at 407, 26 A.3d at 1093.

Finally, the Majority argues that because this case also involves a charge of conspiracy to possess controlled substances with the intent to deliver, the recordings of Kinard‘s phone calls were relevant to demonstrate his intent “to promote or facilitate PWID” with Morrison. Majority Opinion at 11. As this Court has repeatedly indicated, however, the “intent” exception to Rule 404(b)(1) requires proof that “the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances.” Commonwealth v. Aguado, 760 A.2d 1181, 1186 (Pa. Super 2000) (en banc) (quoting Commonwealth v. Camperson, 612 A.2d 482, 484 (Pa. Super. 1992)). In this case, the Commonwealth presented no evidence that Kinard‘s alleged transaction with Morrison “grew out of or was in any way caused by” anything on the recordings of Kinard‘s prison phone conversations. The learned Majority does not cite to any evidence in the certified record in support of a contrary finding. Moreover, because Kinard‘s prison phone calls took place after his interaction with Morrison, nothing said in those phone calls could possibly establish that Kinard had the requisite intent prior to the alleged conspiracy with Morrison. Our Supreme Court has held that evidence of a subsequent bad act is less probative of intent than is a prior bad act. Commonwealth v. Collins, 550 Pa. 46, 56, 703 A.2d 418, 423 (1997), cert. denied, 525 U.S. 1015 (1998); see also Commonwealth v. Ritter, 615 A.2d 442, 445 (1992), appeal denied, 535 Pa. 656, 634 A.2d 220 (1993); Commonwealth v. Green, 505 A.2d 321, 325 (1986), appeal denied, 513 Pa. 633, 520 A.2d 1384 (1987).

For these reasons, in my view the recordings of Kinard‘s phone conversations in prison had no probative value with respect to the crimes with which he is charged in this case. This case must rise or fall exclusive on the jury‘s assessment of Morrison‘s credibility. The Commonwealth sought to introduce the phone recordings for an improper purpose - namely to paint Kinard as a drug dealer in general who would (of course) have a strong propensity to engage in a transaction of the sort described by Morrison. The trial court‘s decision to permit the admission of the phone recordings violated Rule 404(b)(1) and was, as the Majority here admits, highly prejudicial to Kinard. Majority Opinion at 12. I would vacate the judgment of sentence and remand the case for a new trial.

Accordingly, I respectfully dissent.

Notes

1

Q. You just used the terms that when you call to purchase narcotics, that you would use the terms, I need a dime or I need a dub, right?

A. Correct.

Q. Okay. First of all, what‘s a dime?

A. A dime is a dime bag.

Q. Okay.

A. A $10 purchase.

Q. Ten dollars. And what‘s a dub?

A. A dub is $20.

Q. And if you were to call whoever the dealer was, would you use that specific language?

A. Yes.

Q. Why?

A. It‘s used primarily ‘cause that‘s what‘s used on the streets. You‘re not going to just call up an individual who‘s selling drugs and say, hi, I would like to buy a small bag of marijuana, please. It‘s - it just doesn‘t happen....

* * *

Q. And if you were to use, can I get $10 worth of marijuana instead, would they possibly know you were a police officer?

A. Yeah. I always laugh, and I was guilty of it, myself, when I first started, as a rookie narcotics officer. Everyone makes that mistake. And what happens, when you don‘t use the specific term that‘s being used, you hear a click. They hang up on you. They know right away, this person has no idea what they‘re talking about. So, yes, you need to use the slang terms.

N.T., 8/24/2011, at 117-18.