Com. v. Bailey (memorandum)
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J-S63025-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES WILLIAM BAILEY, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 381 WDA 2012 Appeal from the Judgment of Sentence entered on September 6, 2011 in the Court of Common Pleas of Lawrence County, Criminal Division, No. CP-37-CR-0000712-2009 BEFORE: STEVENS, P.J., MUSMANNO and ALLEN, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 18, 2013 James William Bailey ( Bailey ) appeals from the judgment of sentence imposed after he was convicted of four counts of possession with intent to deliver a controlled substance, two counts of possession of a controlled substance, and one count of criminal use of a communication facility.1 We affirm. Bailey was charged with the above crimes plus three other offenses on June 24, 2009. The charges arose from the alleged sale of illegal drugs by Bailey to a confidential informant, Charles Searcy ( Searcy ), on August 16, 2008, August 27, 2008, and September 18, 2008. After a preliminary hearing, the magisterial district judge bound the charges over for trial. The jury found Bailey guilty of the charges of possession with intent to deliver a 1 35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512(a). J-S63025-12 controlled substance and possession of a controlled substance related to the sales of August 16 and August 27, 2008, as well as the charge of criminal use of a communication facility, relating to all three dates.2 The trial court sentenced Bailey to an aggregate prison term of eightyfour months to eighteen years. Bailey filed post-sentence Motions, on which a hearing was held. Bailey s post-sentence Motions were denied by operation of law. Bailey then filed this timely appeal. The trial court ordered Bailey to file a concise statement of matters complained of on appeal, and Bailey timely complied with that Order. The trial court issued an Opinion on April 30, 2012. Bailey raises the following issues on appeal: 1. Whether the trial court erred in not granting Bailey relief wherein there was an excessive police/sheriff presence in the courtroom during trial and said excessive police/sheriff presence had a chilling effect on the jury, effectively stripping Bailey of the presumption of innocence and creating an unacceptable risk of the jury considering impermissible factors? 2. Whether the trial court erred in failing to admit (and/or by excluding) evidence from Stanley Booker, Esquire, regarding information provided to him by [] Searcy [], (the confidential informant in the case), at the hearing on the post-sentence Motions where it was alleged that the Commonwealth failed to disclose Brady [v. Maryland, 373 U.S. 83 (1963),] impeachment evidence? 3. Whether the trial court erred in failing to grant Bailey s post-sentence Motion for a new trial where the verdict was against the weight of the evidence because of the Bailey was found not guilty of the possession and possession with intent to deliver charges related to the alleged sale of September 18, 2008. 2 -2- J-S63025-12 inconsistencies in the testimony of the agents, police officers and confidential informant regarding, inter alia, locations and identification resulting in a verdict so contrary to the evidence as to shock one s sense of justice? See Brief for Appellant at 4. Bailey first contends that the trial court erred in not granting him relief when there was an excessive police/sheriff presence in the courtroom during the trial. Bailey asserts that the police/sheriff presence had a chilling effect on the jury, effectively stripping Bailey of the presumption of innocence and creating an unacceptable risk of the jury considering impermissible factors. Proper security measures in the courtroom are within the sound discretion of the trial court, and will not be disturbed absent an abuse of that discretion. In re F.C. III, 2 A.3d 1201, 1222 (Pa. 2010). [P]olice officers attendance at trial may cause concern with regard to jurors perceptions and courtroom atmosphere. However, where the record does not indicate the number of uniformed officers present or any disturbance caused thereby, we conclude that [a defendant] cannot demonstrate that an unacceptable risk of the jury considering impermissible factors was created. Commonwealth v. Gibson, 951 A.2d 1110, 1139 (Pa. 2008). The record shows that, prior to the testimony of Searcy, defense counsel requested that only one uniformed officer be present, and that the trial court advise the jury that no adverse inference should be drawn from the presence of uniformed officers. N.T., 6/22/11, at 103-04. In response to this request, the trial court gave the jury the following instruction: -3- J-S63025-12 [C]ourtrooms are public places. Contrary to what you may have thought before, people are allowed to go in and come out of courtrooms basically at will. So, I would suggest to the jury we have a rather full courtroom. We have people viewing us. The jurors should infer nothing from that. These are people exercising their rights and responsibilities they have. Id. at 106. Prior to cross-examination of Searcy, defense counsel, outside of the presence of the jury, stated that he had learned that the uniformed officers were present at the request of the District Attorney. Id. at 136-37. The prosecutor responded that the case was being tried by the Office of the Attorney General, who had not asked the District Attorney for uniformed officers to be present. Id. at 137. The prosecutor stated, however, that he was grateful that there was security in the back of the courtroom. The trial court then responded as follows: THE COURT: Thank you. The Court would just for the completeness of the record note that the courtroom itself is separated from the hallway by a vestibule, and there is a glass picture window there. It appears to be four feet by maybe eight feet, nine feet in length, and that at times during the testimony of the C.I., the Court did note up to five deputy sheriffs in uniform standing in that vestibule separated from the courtroom proper. Most of the time during the testimony, the number of uniformed deputies in there, it would appear to the Court were three in number. Very well. Anything else for the record? The Court would also note that you agreed the courtroom was rather packed. By the Court s estimate, there was somewhere in the proximity of 50 to 60 people in the courtroom itself. Counsel? [The prosecutor]: Thank you. The only other thing I think we would want on the record is that the glass viewing area that the Court s describing is not in the direct view of the jury. It -4- Id. J-S63025-12 is neither in the direct view of the jury, which I would consider the far wall, nor is it in the view of the witness. THE COURT: Okay. It is not in the direct view of the jury, but the Court would readily concede that the jury by turning their heads can observe the greatest portions of the vestibule. Id. at 137-39. Based on our review of the record, we discern no abuse of discretion by the trial court in its decision on this issue. We rely on and adopt the wellreasoned trial court Opinion with regard to this claim. See Trial Court Opinion, 4/30/12, at 2-3. Bailey next contends that the trial court erred by excluding, at the hearing on post-sentence Motions, testimony from Stanley Booker, Esquire ( Booker ), Bailey s former pre-trial counsel,3 that Searcy had told him, after the trial in this case, that he had testified for the Commonwealth in this case because the Commonwealth was holding drug sales over his head. Brief for Appellant at 26. Bailey asserts that the Commonwealth had never provided him with information concerning other drug sales by Searcy as required by Brady, and that the evidence was admissible under the Pennsylvania Rules of Evidence. The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that a trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevance and probative value of the evidence against the prejudicial impact Booker was Bailey s initial counsel in this case, but the trial court permitted Booker to withdraw his appearance prior to trial. 3 -5- J-S63025-12 of that evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact. Commonwealth v. Alderman, 811 A.2d 592, 595 (Pa. Super. 2002). [I]n order to establish a Brady violation, a defendant must show that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the defendant, either because it was exculpatory or because it could have been used for impeachment; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant. However, [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. Rather, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (citations omitted, emphasis in original). Here, the trial court did not permit the testimony in question by Booker. In his post-sentence Motion, Bailey had requested a new trial on the basis that the substance of Searcy s statement to Booker was Brady information, which the Commonwealth had failed to disclose to Bailey. Supplemental Post-Sentence Motion, 10/21/11. We find no merit to Bailey s allegation. Essentially, Bailey contends that the Commonwealth did not disclose Brady information to him. The record of the post-sentence Motions hearing shows that Bailey s trial counsel -6- J-S63025-12 Nicholas Frisk, III, Esquire ( Frisk ), testified that he had received a rap sheet on Searcy in discovery, which did not include any drug charges. N.T., 1/24/12, at 12-13. Further, Agent Jason Hammerman, of the Attorney General s Bureau of Narcotics Investigation and Drug Control, the chief investigator for the Commonwealth in this case, testified that he was not aware of any two-ounce sale of cocaine by Searcy. N.T., 2/8/12, at 38-39. The record of the post-sentence Motions hearing demonstrates that the Commonwealth did not possess the allegedly non-disclosed evidence. See N.T., 2/8/12, at 38-39; N.T., 1/24/12, at 12-13. Thus, if Booker had been allowed to testify as to Searcy s statements to him, the trial court still had before it evidence that the Commonwealth s chief investigator was not aware of any sale of cocaine by Searcy, and that Searcy s rap sheet did not include any such charge. Therefore, we conclude that the trial court did not err or abuse its discretion in denying Bailey relief on his claim of a Commonwealth failure to disclose Brady information. that Bailey is not entitled to relief on this issue. Thus, we conclude We also adopt the trial court s analysis with regard to this issue. See Trial Court Opinion, 4/30/12, at 4-6. Next, Bailey contends that the trial court erred in failing to grant his post-sentence Motion for a new trial on the basis that the verdict was against the weight of the evidence due to inconsistencies in the testimony of -7- J-S63025-12 the agents, police officers, and confidential informant as to, inter alia, locations and identification. Our standard of review of a claim challenging the weight of the evidence is as follows. The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury s verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one s sense of justice ¦. Furthermore, where the trial court has ruled on the weight claim below, an appellate court s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007) (citations omitted). After having reviewed the record in light of Bailey s claims, we conclude that the trial court did not abuse its discretion in determining that the verdicts were not against the weight of the evidence. We adopt the trial court s Opinion with regard to this issue. See Trial Court Opinion, 4/30/12, at 8-9. Judgment of sentence affirmed. Stevens, P.J., concurs in the result. -8-
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