Com. v. Evans, J. (memorandum)

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J-S77022-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEROME EVANS Appellant No. 378 EDA 2012 Appeal from the Judgment of Sentence of December 2, 2011 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-0000642-2011 BEFORE: MUSMANNO, J., WECHT, J., and PLATT, J.* MEMORANDUM BY WECHT, J.: FILED MAY 17, 2013 Jerome Evans ( Appellant ) challenges his judgment of sentence for possession with intent to deliver (heroin), 35 P.S. § 780-113(a)(30). As well, Appellant challenges the trial court s imposition of the mandatory minimum sentence of five years imprisonment prescribed by 42 Pa.C.S. § 9712.1(a) ( Sentences for certain drug offenses committed with firearms ). For the reasons (and to the extent) set forth below, we adopt the well-reasoned opinion of the trial court and affirm. Because we adopt the trial court s opinion in this case, we need not render the factual history with anything approaching the ample detail provided by the trial court. It suffices to say that police officers executed a ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S77022-12 search warrant for Appellant s apartment, whereupon they found 267 glassine packets of heroin, stamped Resident Evil, stored in a baggie of uncooked rice located in a backpack found in a hamper in the apartment s lone bedroom. Collectively, these packets contained 4.8 grams of heroin. As well, they found a 9-millimeter Taurus handgun in a dresser in the same room, which handgun was loaded with eighteen rounds; in the same dresser, police recovered a second magazine. In addition to these items, the police found a box of ammunition secreted between the mattress and box spring in the same room. Police also recovered, inter alia, $700 in cash from a freezer in the kitchen. The jury heard extensive Commonwealth evidence, including that of a narcotics expert who testified at length concerning his opinion that the various items found in the apartment were consistent with the intent to deliver narcotics rather than personal use. In addition to the individual packaging, the storage of the packets in rice (a desiccant that acts as a preservative), and the currency found in the freezer, all of which the expert identified as hallmarks of narcotics distribution, the expert also indicated that 4.8 grams of heroin was enough to keep an average user of heroin high for over one month. See Trial Court Opinion ( T.C.O. ), 5/11/2012, at 4-6, and footnotes thereto. Appellant s statement of the issues suffices to sketch out the bases for his appeal: -2- J-S77022-12 1. Whether the trial court erred in refusing to permit [Appellant] to cross-examine [former] Detective [Thomas] Beiser about disciplinary action from another incident with an alleged drug dealer[1] and failing to require the Commonwealth to disclose [former Detective Beiser s] personnel file about same. 2. Whether the trial court erred by applying the mandatory sentence provisions of 42 Pa.C.S. § 9712.1. Brief for Appellant at 4 (capitalization modified and serial typographical errors corrected for clarity). With two caveats, we find the trial court s resolution of these issues in its opinion pursuant to Pa.R.A.P. 1925(a) to be fully responsive to Appellant s arguments on appeal, requiring no material supplementation. Accordingly, we adopt that opinion s thorough account of the factual and procedural history of the case, T.C.O. at 1-7, and to the extent set forth below, its analysis and resolution of issue 1, id. at 8-15, and its analysis and resolution of issue 2, id. at 22-32. Our caveats touch upon each of Appellant s issues. Regarding Appellant s challenge to the trial court s ruling denying him the opportunity to cross-examine Officer Beiser regarding the misconduct in another case ____________________________________________ 1 The parties do not dispute that Thomas Beiser, a detective with the City of Easton Police Department Vice Unit, was demoted to patrolman months after the investigation and arrest here at issue, which concomitantly disqualified him for continued membership in the Vice Unit. See T.C.O. at 9. In order to evaluate Appellant s request to admit evidence of this disciplinary action, the trial court permitted Appellant to question Officer Beiser outside the presence of the jury. Officer Beiser testified that he was demoted as a result of [him] cursing at an alleged drug dealer who had crack cocaine secreted in his buttocks. Id. (quoting Notes of Testimony, 10/4/2011, at 110). -3- J-S77022-12 that led to his demotion from detective, we agree with the trial court that Appellant failed to establish through any meaningful proffer the sort of nexus between the alleged misconduct and the instant arrest that would justify pursuit of that line of inquiry. T.C.O. at 11-15 (finding this case controlled by Commonwealth v. Bozyk, 987 A.2d 753 (Pa. Super. 2009), in which officer misconduct was unrelated to defendant s underlying charges, and there was no motive to fabricate). However, regarding Appellant s effort to obtain Officer Beiser s personnel file, we wish to clarify that we would go no further than to observe that such a ruling appears to us correct based upon our determination that the trial court correctly found Appellant s proffer regarding relevance to be insufficient in light of the governing case law. That ruling moots Appellant s desire to review the personnel file, because Appellant failed to establish a foundation to justify such an intrusion. Consequently, we need not reach, and do not endorse, the trial court s determination that Appellant waived his right to challenge the trial court s denial of Appellant s requests for Officer Beiser s personnel file for failure to file a formal motion. See T.C.O. at 15. The transcript is replete with occasions upon which Appellant sought that file in open court, and in each instance the trial court rejected the request. See Brief for Appellant at 8-12 (quoting notes of testimony for instances when the issue was raised and reraised by Appellant). The trial court did not suggest at trial that Appellant s request was nugatory for want of a formal motion, and we do not believe that such a motion was required in this instance. Rather, Appellant s serial -4- J-S77022-12 efforts to obtain the requested information amply preserved the issue for appellate review. Nonetheless, for the substantive reasons alluded to above and elucidated in detail by the trial court, T.C.O. at 11-15, the preservation issue is immaterial to the disposition of the issue on appeal. Thus, the trial court properly ruled that Appellant is entitled to no relief on his first issue. In connection with his sentencing issue, Appellant s argument, in support of which he cites only Commonwealth v. Person, 39 A.3d 302, 305 (Pa. Super. 2012), rests upon the proposition that section 9712.1(a) applies only when the firearm in question is both controlled by the defendant and found in close proximity to the narcotics in question. The trial court acknowledged that Person can be read for precisely that proposition. However, the court also observed that numerous cases, none of which is unacknowledged by Appellant, have issued suggesting that either control or proximity will suffice to support imposition of the mandatory sentence. T.C.O. at 25-28 & n.25 (discussing Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008); Person, supra; Commonwealth v. Stein, 39 A.3d 365 (Pa. Super. 2012); Commonwealth v. Hawkins, 45 A.3d 1123 (Pa. Super. 2012)).2 ____________________________________________ 2 The trial court also noted that our Supreme Court granted allocatur to review our decision in Commonwealth v. Hanson, 29 A.3d 366 (Pa. Super. 2011), specifically to address aspects of the issue presented herein. T.C.O. at 28 n.25. Hanson was argued before our Supreme Court on May 8, 2012. See Docket, 55 EAP 2011. As of this writing, the Court has yet to issue its decision. -5- J-S77022-12 We agree with the trial court s learned discussion of the case law concerning this issue, as well as that court s observation that the law appears to be unsettled with regard to the Person-reliant argument pressed by Appellant. However, we also agree with the trial court, for all the reasons stated in its opinion, that the circumstances of this case support imposition of the mandatory minimum sentence even under the conjunctive interpretation of section 9712.1(a) reflected in Person. See T.C.O. at 2832. Accordingly, interpretive uncertainty notwithstanding, we agree with the trial court that its imposition of the mandatory sentence was not illegal in this case. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Prothonotary Date: 5/17/2013 -6-

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