COMMONWEALTH OF PENNSYLVANIA v. RAHSEUL MAVEN
No. 2931 EDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED JUNE 25, 2019
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37; J-A27018-18; Appeal from the Judgment of Sentence April 22, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009780-2013
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
Rahseul Maven appeals from the April 22, 2016 judgment of sentence of three to six years of imprisonment imposed following his conviction for possession with intent to deliver (PWID) crack cocaine. Upon review, we affirm.
On July 13, 2013, Philadelphia Police arrested Appellant for, inter alia, PWID following two controlled purchases of crack cocaine to a confidential informant (CI) and a search of the second-floor apartment at 2601 South Sheridan Street. On February 19, 2014, Appellant filed a motion for disclosure of the CI’s identity under
On November 25, 2015, Appellant filed a motion to withdraw his guilty plea, which the trial court granted on the same day. Also on November 25 and November 26, 2015, Appellant was recorded on a jail telephone arranging for the destruction or removal of cocaine at his house in anticipation of his release on house arrest pending trial. N.T. Trial, 4/14/16, at 140-45. On April 13, 2016, prior to the start of his jury trial, Appellant’s trial counsel orally raised a motion in limine to preclude the Commonwealth from introducing and admitting into evidence the telephone recordings. Following a hearing, the trial court denied the motion and Appellant proceeded to his jury trial. Appellant was convicted of PWID.
On April 22, 2016, prior to the start of sentencing, Appellant’s trial counsel orally moved for extraordinary relief under
Appellant timely filed post-sentence motions, which the trial court denied. Appellant filed a notice of appeal and both Appellant and the trial court complied with
Appellant presents six issues for our review:
- Did not the trial court err when it denied [A]ppellant’s motion to preclude
Pa.R.Evid. 404(b) evidence, where the admitted evidence consisted of conversations from two years after the instant case and did not meet the knowledge, intent, lack of mistake or identity exceptions to Rule 404(b); and the evidence was more prejudicial than probative? - Did not the lower court err in denying [A]ppellant’s Motion to Reveal Identity of Confidential Informant because 1) [A]ppellant satisfied his burden that his request was material and reasonable by raising a defense of mistaken identification; and 2) the Commonwealth failed to show any reasonably specific type of danger to the specific informant in this matter if the identity were disclosed?
- Did not the trial court err by failing to grant [A]ppellant’s requested jury instruction of failure to call a potential witness, the Commonwealth’s confidential informant, in violation of his rights to due process and a fair trial under the state and federal constitutions?
- Did not the trial court err by failing to impose a recidivism risk reduction incentive (RRRI) sentence where [A]ppellant’s single prior adjudication for possession of a weapon under
18 Pa.C.S. § 907(b) and his alleged association with a gang, do not constitute a history of present or past violent behavior, thereby rendering [A]ppellant’s sentence illegal? - Did not the trial court err as a matter of law and violate the discretionary aspects of sentencing when it imposed a manifestly excessive and unreasonable sentence of three to six years of confinement plus ten years of probation, a sentence in the aggravated range of the sentencing guidelines, where the sentence as based on impermissible factors and was in excess of what was necessary to address
the gravity of the offense, the protection of the community and [A]ppellant’s rehabilitative needs? - Pursuant to [Commonwealth v. Mills], 162 A.3d 323 (Pa. 2017), did not the motions court erroneously deny [A]ppellant’s motion to dismiss pursuant to
Pa.R.Crim.P. 600(A) , after initially granting it, because, including the time attributable to the normal progression of a criminal case where there was no judicial delay, more than 365 days had elapsed before [A]ppellant was brought to trial?
Appellant’s brief at 5-6.
We begin our analysis with Appellant’s first argument concerning the admissibility of the 2015 prison recordings under
In order to achieve a conviction for possession with intent to deliver (PWID), the Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance. Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008). When controlled substances are not discovered on a defendant’s person, the Commonwealth may meet its burden by showing constructive possession. Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super. 2016). We have
A review of the trial transcript reveals that Appellant countered the Commonwealth’s evidence of his guilt by repeatedly alleging that he was not the person possessing or selling the cocaine, suggesting that it was a neighbor, Joseph Jordan, or someone that looked like him, that the CI lied, and that Philadelphia Police Officer Jason Yerges was mistaken in his identification. N.T. Trial, 4/13/16, at 148; N.T. Trial, 4/14/16, at 89-101, 139; N.T. Trial, 4/15/16, at 7-33. Additionally, Appellant focused on Joseph Jordan’s guilt by introducing evidence that allowed him to argue that the drug packaging discovered in the apartment matched the cocaine found on Joseph Jordan when he was arrested, pointing out that the letter was addressed to Appellant at a different address, and that the two separate apartments theory was a convenient fiction created by the Commonwealth. N.T. Trial, 4/14/16, at 141-43, 152-55; N.T. Trial, 4/16/16, at 14, 18.
Since Appellant’s misidentification defense necessarily contested the elements of PWID, it went directly to the heart of the Commonwealth’s case against him. See, e.g., Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa.Super. 2010) (In addition to proving the statutory elements of the crimes
Pennsylvania Rule of Evidence 404(b)(2) provides that evidence of other crimes, wrongs, or bad acts is inadmissible to show that a person acted in conformity therewith. However, such evidence is admissible if offered for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Appellant argues that the telephone conversations should have been excluded as improper knowledge, intent, and lack of mistake evidence. Appellant’s brief at 24-25. After careful review, we disagree and find that the calls were admissible to establish Appellant’s knowledge and control over the crack cocaine that was recovered from his apartment. Since this evidence
Appellant relies on Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa.Super. 2012), to conclude that the subsequent bad acts evidence should have been excluded. Appellant’s brief at 27, 29. In Ross, the Commonwealth’s purported Rule 404(b) exception evidence did not go directly to an element that needed to be proven because intent could be inferred from the circumstances surrounding the murder. However, our case is distinguishable from Ross, since proof of Appellant’s constructive possession of crack cocaine could not be inferred from the circumstances in the same way
In the telephone conversations, Appellant exerts control over crack cocaine located under his bed by instructing the person he is speaking with to remove the crack cocaine from that specific location. During the earlier search of his residence, the same type of drug was found in his bedroom closet. N.T. Trial, 4/14/16, at 52-53. Appellant attempted to disavow any knowledge or control over the drugs found in his bedroom by pointing out that the two apartments were connected by an interior hallway and that Joseph Jordan had crack cocaine on him when he was arrested. Therefore, the trial court did not abuse its discretion when it held that Appellant’s statements exerting control over identical drugs in the same location established sufficient similarities to create the necessary nexus rendering the conversations admissible.
Finally, Appellant alleges that the probative value of the evidence was substantially diminished by the two years that passed between the charges and the subsequent phone calls, and the Commonwealth’s low need for the evidence, such that the prejudice he suffered outweighed the probative value. Appellant’s brief 29-31. While we agree that the passage of time did diminish the value of the evidence slightly, that fact goes to the weight of the evidence, not its admissibility. Appellant was not convicted of any crime based on these calls and he was free to argue his position on the time gap to the jury. In
Notably, Appellant spent the majority of the two years incarcerated.2 It is well-established that time spent incarcerated must be excluded in the calculation of how much time has elapsed in a course of conduct analysis. Commonwealth v. O‘Brien, 836 A.2d 966 (Pa.Super. 2003) (holding defendant’s prior ten-year old convictions were not too remote in time where the defendant was paroled five years before current offense); Commonwealth v. Rush, 646 A.2d 557 (Pa. 1994) (excluding defendant’s period of incarceration from relevant time for remoteness analysis, where eight years separated commission of crimes in question). Therefore, the relevant time lapse between the offense and subsequent calls is not too remote because Appellant was incarcerated for much of the time. Additionally, the similarities of the two incidents render the two-year time gap less important.
Finally, proof of possession played a vital role in the Commonwealth’s burden of proof for PWID. Therefore, the Commonwealth had a significant need for the subsequent bad acts evidence. Commonwealth v. Gordon, 673 A.2d 866 (Pa. 1996) (holding evidence of appellant’s similar prior sexual
Second, Appellant asserts that the trial court erred in failing to require the Commonwealth to disclose the identity of the CI. Appellant’s brief at 33-34. The Commonwealth responds that disclosing the CI’s identity was not warranted because Appellant failed to demonstrate that the CI’s testimony was material to the defense and because revealing the identity of the CI would threaten the CI’s safety. Commonwealth’s brief at 28.
Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant’s identity is confined to abuse of discretion. Commonwealth v. Washington, 63 A.3d 797, 801 (Pa.Super. 2013). The Commonwealth has a qualified privilege to withhold the identity of a CI. Commonwealth v. Marsh, 997 A.2d 318 (Pa. 2010). In order to overcome that privilege, a defendant must establish that the information sought is material to the preparation of his defense and that the request is reasonable.
Appellant failed to show that the CI’s identity was material to his defense. In this case, the CI was not the only eyewitness to the crime. At the motions hearing, Officer Yerges testified that he observed both transactions within twenty-five feet and positively identified Appellant as the dealer. N.T. Motions, 4/1/14, at 6-9, 11. During both surveillance operations, the CI was searched before and after the transaction, made phone calls to Appellant in the officers’ presence, and was never out of the sight of Officer Yerges. Id. at 6, 8-9. Additionally, the CI was not present or involved in the search of 2601 South Sheridan Street.
As the testifying officer directly observed the controlled buys and identified Appellant based on his own observances, Appellant needed to offer an explanation as to how the CI’s testimony could have benefitted him. However, he has provided none. Therefore, the trial court did not commit
Appellant’s next concern attacks the trial court’s denial of his request for a missing witness jury instruction. Appellant contends that the trial court erred in refusing to charge the jury that it could draw an inference, based on the absence of the CI’s testimony at trial, that the CI’s testimony would have been adverse to the Commonwealth. Appellant’s brief at 41-44. The Commonwealth responds that Appellant was not entitled to an instruction because the informant’s identity was privileged and disclosure of his identity, by putting him on the stand, would have put the informant’s life at risk. Appellee’s brief at 35.
[O]ur standard of review when considering the denial of jury instructions is one of deference—an appellate court will reverse a court’s decision only when it abused its discretion or committed an error of law. Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa. 2009). A trial court may provide for a missing witness instruction against the Commonwealth when, a potential witness is available to only one of the parties to a trial, and
The record reflects that Appellant requested that the trial court give a missing witness jury instruction at trial and contemporaneously objected to its absence. N.T. Trial, 4/14/16, at 159; N.T. Trial, 4/15/16, at 70. The trial court rejected that request, finding that the Commonwealth had provided a satisfactory explanation, namely a genuine concern for the personal safety of the CI, for its failure to call the CI to testify at trial. N.T. Trial, 4/14/16, at 160-61; N.T. Trial, 4/15/16, at 70. Accordingly, the trial court concluded that Appellant was not entitled to a missing witness jury instruction, and refused to provide the requested charge. We agree, and conclude that the trial court did not err in refusing to issue a missing witness instruction.
In his fourth claim, Appellant attacks the trial court’s determination that he was not an eligible offender for the RRRI program, based on his prior adjudication for possession of a weapon and association with a gang. Appellant’s brief at 45. A challenge to a court’s failure to impose an RRRI sentence implicates the legality of the sentence. Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.Super. 2014).
The RRRI Act requires the trial court to determine at the time of sentencing whether the defendant is an eligible offender.
In Chester, our Supreme Court addressed whether a conviction for first-degree burglary demonstrated violent behavior under
such a substantial use of force that an officer or offender may be harmed, thereby causing significant risk of injury, and invites the same potential for confrontation that greatly concerned the High Court in considering the offense of first-degree burglary. Indeed, the Chester Court was concerned with the possibility of the use of deadly force against either the offender or the victim and not the behavior that is actually exhibited during the commission of the crime.
Id. at 1036 (internal quotation and citation omitted).
Appellant was adjudicated delinquent for possessing a .25 caliber semi-automatic handgun, an offense not enumerated in the RRRI Act. Combined with the potential for violence that Appellant’s long-term association with a street gang and continued sale of cocaine in a residential neighborhood posed, the trial court properly found Appellant ineligible based on his prior adjudication for possession of a .25 caliber semi-automatic handgun.
Appellant counters that his isolated adjudication for possession of a weapon is insufficient to demonstrate a history of present or past violent behavior, based on Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017). However, Appellant reads the holding in Cullen-Doyle too broadly. In Cullen-Doyle, the defendant pled guilty to one count of burglary graded
Appellant’s case is readily distinguishable from Cullen-Doyle, since Appellant is not a first-time offender and failed at previous attempts at rehabilitation. Specifically, Appellant has a prior adjudication for possessing a gun, a prior conviction for selling crack cocaine, and is a known associate of a violent street gang. Additionally, Appellant has already been given the opportunity to rehabilitate through a juvenile placement and probation. Instead of utilizing those opportunities to rehabilitate himself, Appellant has continued to participate in illegal drug activity, even while incarcerated on this case. N.T. 4/22/16, 23-30. Accordingly, the trial court did not abuse its discretion in finding Appellant ineligible for RRRI.
In his penultimate claim, Appellant challenges the discretionary aspects of his aggravated range sentence based on the trial court’s alleged improper reliance on his gang association. The following principles govern whether a merits review is warranted:
An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014) (citations omitted).
Appellant filed a motion for reconsideration of his sentence. However, in it, he did not challenge his sentence based on the trial court’s impermissible consideration of his gang association. Instead, he targeted an incorrect offense gravity score, the court’s failure to state adequate reasons for imposing his sentence, and the court’s failure to adequately examine his background, character and rehabilitative needs. Thus, his current claim is waived. See
Even if we were to determine that Appellant’s claim was not waived, we would find no merit to its underlying allegation.4 At sentencing and in a pre-sentencing memorandum, the Commonwealth presented uncontested evidence that [Appellant] is a self-identified member of 7th Street gang. Commonwealth’s pre-sentencing memorandum, 4/21/16, at 5. The record reveals that the trial court considered this factor along with all of the other details of Appellant’s background, as highly relevant to Appellant’s potential for rehabilitation. Trial Court Opinion, 8/29/17, at 19.
Further, the trial court also had the benefit of sentencing guidelines and a presentence report, which the court is presumed to have considered and weighed in crafting its sentence. See Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013) (finding that where the sentencing court has reviewed a pre-sentence report, it is presumed that the court was aware of relevant information regarding the defendant’s character and weighed those considerations along with any mitigating factors). Most notably, the trial court found Appellant’s illegal drug dealing in the presence of his children to be the most alarming factor when fashioning the order of sentence, not his gang
Finally, Appellant argues that the motions court erroneously denied his motion to dismiss pursuant to
We review Rule 600 motions under the following standard of review:
In evaluating speedy trial issues, our standard of review is whether the trial court abused its discretion, and our scope of review is limited to the trial court’s findings and the evidence on the record, viewed in the light most favorable to the prevailing party. Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonably, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
Commonwealth v. Miskovitch, 64 A.3d 672, 677 (Pa.Super. 2013) (internal citations and quotation marks omitted). Rule 600 provides, in relevant part that:
- (2) Trial shall commence within the following time periods.
- (d) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall
commence within 365 days from the date on which the trial court’s order is filed.
Here, the trial court permitted Appellant to withdraw his guilty plea on November 25, 2015. Appellant was then tried and convicted in April of 2016, well within the 365 days that the Commonwealth had to bring Appellant to trial. Therefore, this claim is meritless on its face.
Appellant relies on Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017), to challenge a ninety-nine day delay that occurred before he entered into his guilty plea. The trial court considered this claim and deemed that the relevant time period was excusable because it was time that the Commonwealth spent attempting to respond to Appellant’s unusual and comprehensive discovery [request for] documents not normally obtained within the pre-trial process. Trial Court Opinion, 8/29/17, at 12. We agree.
In Mills, the Court held that there was no bright-line that would automatically exclude time spent preparing for trial between the scheduling conference and the first trial listing. Mills, supra, at 324-25. Instead, the Mills Court determined that trial courts have discretion to differentiate between time necessary to ordinary trial preparation and judicial delay arising
Judgment affirmed.
Judge McLaughlin joins the memorandum.
Judge Stabile files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/19