Com. v. Ford (memorandum)

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J-S75023-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ARLIN FORD Appellant No. 729 WDA 2012 Appeal from the Judgment of Sentence April 24, 2012 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000504-2011 BEFORE: STEVENS, P.J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY MUNDY, J.: Filed: January 30, 2013 Appellant, Arlin Ford, appeals from the April 24, 2012 aggregate judgment of sentence of 10 to 20 years incarceration following his conviction by a jury of persons not to possess firearm, possession with intent to deliver a controlled substance (cocaine), and possession of a controlled substance (cocaine).1 After careful review, we affirm. The trial court aptly summarized the procedural history of this case as follows. This was a second trial on the charges of Possession and Possession with Intent to Deliver Cocaine and Persons Not to Possess Firearms. [Appellant s] first trial held on September 8, 2011 ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 6105(a), 35 P.S §§ 780-113(30) and (16), respectively. J-S75023-12 resulted in guilty verdicts for charges of Possession of Marijuana (Count 4) and Possession of Paraphernalia (Count 5). The jury was unable to reach a unanimous verdict on the charges of Persons Not to Possess Firearms (Count 1), Possession of a Controlled Substance, Cocaine, With Intent to Deliver (Count 2) and Possession of a Controlled Substance, Cocaine, (Count 3). Since the jury was hopelessly deadlocked on Counts 1, 2 and 3, [Appellant s motion for] mistrial was granted on September 9, 2011 by the Honorable Judge John F. Wagner. On September 16, 2011, [Appellant] was sentenced on the convictions for Counts 4 and 5. On September 19, 2011, [Appellant] filed a motion to modify sentence which was denied by Judge Wagner on September 26, 2011. Thereafter, on October 4, 2011, [Appellant] filed his notice of appeal with the Superior Court at No. 1554 WDA 2011 from the sentence imposed on Counts 4 and 5. ¦.2 On December 28, 2011, [Appellant] filed a Motion to Dismiss Counts 1, 2 and 3, contending that a retrial on these counts would constitute double jeopardy. A hearing was subsequently held on January 30, 2012 before the Honorable President Judge Gerald R. Solomon and on the same date an Order was entered denying [Appellant s] Motion to Dismiss. The second trial of [Appellant] on Counts 1, 2 and 3, commenced before [the trial court] on April 2, 2012. Trial Court Opinion, 6/18/12, at 2-3 (citations omitted). Following his second trial [Appellant] was found guilty by a jury of [Counts 1, 2 and 3]. ____________________________________________ 2 This Court affirmed the September 16, 2011 judgment of sentence on June 12, 2012. Commonwealth v. Ford, 53 A.3d 930 (Pa. Super. 2012) (unpublished memorandum). -2- J-S75023-12 Prior to the imposition of sentence the Commonwealth filed its notice of intent to seek a mandatory minimum sentence in accordance with the sentencing provisions of 18 Pa.C.S.A. § 7508(a)(3)(ii) which calls for a minimum mandatory sentence of no less than five years and a fine of no less than $30,000.00. The conviction was for a quantity of cocaine exceeding ten grams and [Appellant] had prior convictions for drug trafficking offenses. The Commonwealth also filed a notice of intention to seek a mandatory minimum sentence in accordance with 42 Pa.C.S.A. § 9712.1(a) which calls for a minimum mandatory sentence of five years total confinement where a firearm is found in close proximity to the controlled substance. [Appellant] was sentenced on the conviction for Possession With Intent to Deliver to a mandatory term of incarceration of not less than five years nor more than 10 years. [Appellant] was sentenced on the conviction for Persons Not to Possess Firearms to a consecutive mandatory term of not less than five years nor more than 10 years. Id. at 1-2 (citations omitted). The trial court further summarized the facts underlying the charges in this case as follows. FACTS On February 4, 2011, Officer Jamie Holland of the Fayette County Drug Task Force using a confidential informant (C.I.) travelled to [Appellant s] residence, 138 Searight Avenue, Uniontown, Pennsylvania, where the C.I was searched and provided with $40.00 in official funds as buy money. The C.I. met [Appellant] on the porch of the residence. The C.I. entered the residence with [Appellant], following which the C.I. reappeared within two to three minutes. The C.I. again met with -3- J-S75023-12 Holland and turned over to the officer a small quantity of crack cocaine. The C.I. was again searched and found to be free of any contraband and the U.S. currency that had been provided by the officer. On February 7, 2011, Officer Holland again met with and searched the C.I. and provided him with $40.00 in official funds. The Officer watched as the C.I. approached the back French doors of [Appellant s] residence. [Appellant] exited the back door and met with the C.I. The C.I. then rejoined Officer Holland and turned over to the officer a small quantity of crack cocaine. The C.I. was again searched and found to be free of contraband and currency. With regard to both of the undercover buys, the official funds were photocopied by the police before being provided to the C.I. On February 7, 2011, following the second undercover purchase of drugs, Officer Holland prepared the necessary documents and affidavit to apply for a search warrant. A search warrant for [Appellant s] residence was issued by the district judge. The search warrant was executed during the early hours of February 8, 2011, at [Appellant s] residence by Officer Holland, Captain David Rutter and other members of the Fayette County Drug Task Force. During the search of the residence the Police recovered from a cubby hole above the master bedroom doorway, behind a section of unfinished drywall, $1,030.00 in U.S. currency ($60.00 of which was part of the official funds which had been supplied by Officer Holland to the C.I.), a baggie of hard white chunky substance about the size of a baseball suspected to be crack cocaine, a digital scale designed to resemble a CD case, and a .38 caliber Smith and Wesson revolver loaded with three live rounds of ammunition. -4- J-S75023-12 After locating the cubby hole above the door, Rutter proceeded downstairs to the first floor of the home and explained to Officer Holland what he had found. [Appellant] who was in the immediate vicinity, put his head down and said that was my ultimate hiding spot. This comment was overheard by Captain Rutter and Constable Mike Pasquale. The Police also recovered from a computer desk in [Appellant s] bedroom plastic baggies including baggies with the corners ripped off commonly referred to in the drug trade as diapers, a cell phone, a second digital scale and additional currency. A box of Winchester .38 caliber ammunition was recovered from the kitchen. The box had contained 97 bullets, three bullets were missing from the box. During the trial, the parties stipulate that the white baseball-sized substance contained in the plastic baggie recovered from the cubby hole was analyzed at the Pennsylvania State Crime Laboratory in Greensburg, Pennsylvania by Douglas Stambar, a chemist, and was found to weigh 62.7 grams and contained cocaine, a Schedule 2 controlled substance. The Parties further stipulated that the weapon recovered was examined by firearms examiner Robert M Haggins, at the Greensburg Laboratory. The weapon was identified as being a Smith and Wesson double action revolver model .38. The examination revealed that the firearm was functional and capable of discharging the types of ammunition for which it was designed and manufactured. The weapon had a trigger pull of approximately four pounds in single action and 13 to 15 pounds in double action. It was also stipulated that [Appellant] was a person prohibited from possessing, using, controlling, transferring or manufacturing a firearm -5- J-S75023-12 pursuant to 18 Pa.C.S.A. § 6105 and that he had been so for a period of time in excess of 60 days prior to February 8, 2011. Corporal Dennis Ulery of the Pennsylvania State Police was duly qualified as an expert in the field of drug investigations. In the opinion of the expert based upon the quantity of the cocaine possessed , the sandwich baggies used as packaging material, some of which have the corners removed, the digital scales which weigh quantities as small as one-tenth of a gram, the large quantity of currency and the handgun that the cocaine was not possessed for personal use but was possessed with the intent to deliver to others. Id. at 3-7 (citations omitted). Appellant did not file any post-sentence motions. On May 1, 2012, Appellant filed a timely notice of appeal from the April 24, 2012 judgment of sentence. Appellant and the trial court have complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following questions for our review. []1: Whether the [trial] court committed reversible error in permitting the Commonwealth to introduce evidence of prior uncharged crimes[?] []2: Whether the court committed reversible error in pemitting [sic] the Commonwealth to introduce evidence from prior trial where [Appellant] was convicted. Specifically the introduction of paraphanalia [sic] from prior trial in violation of double jeopardy? []3: Did the court err in denying the Appellant s double jeopardy motion? []4: Whether the court erred in denying the [Appellant s] omnibus pre-trial motion in that the basis for the search warrant lacked -6- J-S75023-12 sufficeint [sic] specificity as to what areas were to be searched within the house and did not grant police the authority to search inside the walls of the home and therefore, the court should have suppressed all of the evidence recovered from inside the walls of Appellant s house. []5: Whether the Commonwealth failed to prove beyond a reasonable doubt that Appellant possessed the drugs or firearms in the instant case? Appellant s Brief at 7. Appellant s first two issues concern the trial court s evidentiary rulings. We acknowledge our well-settled standard of review of a trial court s ruling on the admissibility of evidence. The admissibility of evidence is within the sound discretion of the trial court, wherein lies the duty to balance the evidentiary value of each piece of evidence against the dangers of unfair prejudice, inflaming the passions of the jury, or confusing the jury. We will not reverse a trial court s decision concerning admissibility of evidence absent an abuse of the trial court s discretion. Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011) appeal dismissed as improvidently granted, 54 A.3d 22 (Pa. 2012), quoting Commonwealth v. Ruffin, 10 A.3d 336, 341 (Pa. Super. 2010) (citations omitted). Not merely an error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record. -7- J-S75023-12 Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009) (internal quotation marks and citation omitted), cert. denied, Montalvo v. Pennsylvania, 131 S.Ct. 127 (2010). [When] the trial court indicate[s] the reason for its decision[,] our scope of review is limited to an examination of the stated reason. We must also be mindful that a discretionary ruling cannot be overturned simply because a reviewing court disagrees with the trial court s conclusion. Commonwealth v. Lomax, 8 A.3d 1264, 1266 (Pa. Super. 2010) (internal quotation marks and citation omitted). Instantly, we conclude Appellant s first two issues are waived for failure to sufficiently argue his position in his appellate brief. Appellant provides no argument at all relative to his second issue. Relative to his first issue, Appellant cites to no authority in support of his bald assertions, fails to address the authority relied on by the trial court and Commonwealth, and provides no cogent analysis or development of his claim. See Appellant s Brief at 10-12. We have held such briefing deficiencies will result in waiver of an issue on appeal. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating, where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived ), cert. denied, Johnson v. Pennsylvania, 131 S.Ct. 250 (2010). -8- J-S75023-12 Even absent waiver, we agree with the trial court s discussion of the merits of Appellant s claims as expressed in its June 18, 2012 opinion, which thoroughly discusses the facts and the law, refuting Appellant s claims. Specifically, we agree the challenged evidence was admissible to prove Appellant s intent to deliver the cocaine. We further agree with the trial court that its instruction to the jury cast the evidence in its proper context. We also agree that Appellant s double jeopardy assertion as raised in his second issue is without merit as he was not in jeopardy for the paraphernalia charge in his second trial. Accordingly, as an alternative disposition, we adopt the trial court s June 18, 2012 opinion as our own for purposes of this appeal. Appellant s third issue challenges the trial court s refusal to grant its motion to dismiss the charges on double jeopardy grounds. Appellant s Brief at 12. An appeal grounded in double jeopardy raises a question of constitutional law. This court s scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo. Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (internal quotation marks and citations omitted). United The Double Jeopardy Clause of the Fifth Amendment to the States Constitution protects an individual against successive punishments and successive prosecutions for the same criminal offense. Id. (internal quotation marks and citations omitted). -9- J-S75023-12 The prohibition against double jeopardy protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. Generally, mistrial because of the inability of the jury to reach a verdict does not fall within these protections and, therefore, is not a bar to reprosecution. Commonwealth v. McCane, 539 A.2d 340, 345-346 (Pa. 1988) (citation omitted). Again, we conclude Appellant has waived this issue for failure to adequately brief it. See Johnson, supra. Appellant cites to no authority and provides no meaningful development of the issue. See Appellant s Brief at 12-13. Even absent waiver, we agree with the trial court that Appellant s issue is totally without merit. Accordingly, as an alternative resolution relative to this issue, we again adopt the trial court s June 18, 2012 opinion as our own for purposes of this appeal. Appellant s fourth issue faults the trial court s denial of his suppression motion, filed prior to his initial trial. Appellant s Brief at 14. Appellant specifically asserts, the warrant should not have been issued because the Commonwealth did not establish probable cause, nor did the warrant give specific permission to open the walls of [the] property to be searched. Id. We note Appellant raised this precise issue in his earlier appeal from his September 16, 2011 judgment of sentence. [Appellant] claims there was insufficient probable cause to support the search warrant and the warrant did not permit the police to search behind drywall paneling where some of - 10 - J-S75023-12 the incriminating evidence was found. Ford, supra at 1. We also note Appellant made no additional arguments or objections to admission of the physical evidence seized pursuant to the warrant during the proceedings in the retrial of counts 1, 2 and 3. This Court addressed and disposed of this issue, holding the trial court did not err in denying Appellant s suppression motion. Id. at 3-5. Accordingly, this issue is subject to collateral estoppel on the legal issue presented, and we are bound by that determination. See Commonwealth v. Holder, 805 A.2d 499, 503-505 (Pa. 2002) (plurality) (applying collateral estoppel against a defendant to preclude relitigation of issue determined in prior proceeding); see also Commonwealth v. States, 938 A.2d 1016, 1019-1020 (Pa. 2007) (discussing application of collateral estoppel to criminal cases in certain aspects). In his fifth issue, Appellant claims the weight of the evidence was unable to support his convictions.3 Appellant s Brief at 16. [A]ppellant believes that the Commonwealth has failed to meet its burden of proof and suggests the jury s verdict shocks the conscience. Id. A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Diggs, ____________________________________________ 3 The trial court interpreted Appellant s ambiguously phrased issue in his Rule 1925(b) concise statement as a challenge to the sufficiency of the evidence. Trial Court Opinion, 6/18/12, at 17. To the extent Appellant has raised a challenge to the sufficiency of the evidence, we adopt the trial court s June 18, 2012 opinion, relative to this issue, as our own for purposes of this appeal. - 11 - J-S75023-12 949 A.2d 873, 879 (Pa. 2008), cert. denied, Diggs v. Pennsylvania, 129 S.Ct. 1520 (2009). Moreover, 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. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (quotations and citations omitted), appeal denied, 3 A.3d 670 (Pa. 2010). Because our review of a challenge to the weight of evidence is limited to whether the trial court abused its discretion, it is critical that Appellant present the issue to the trial court in the first instance in a motion for new trial.4 Failure to raise the issue before the trial court waives the issue for appeal. ____________________________________________ 4 Rule 607, addressing challenges to the weight of the evidence, provides as follows. (A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written sentencing; or motion at (3) in a post-sentence motion. (Footnote Continued Next Page) - 12 - any time before J-S75023-12 Appellant s failure to challenge the weight of the evidence before the trial court deprived that court of an opportunity to exercise discretion on the question of whether to grant a new trial. Because appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence, Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753 (2000), this Court has nothing to review on appeal. We thus hold that Appellant waived his weight of the evidence claim because it was not raised before the trial court as required by Pa.R.Crim.P. 607. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood v. Pennsylvania, 130 S.Ct. 2415 (2010). Instantly, Appellant did not file a post-sentence motion. Additionally, the record reflects that Appellant did not advance any oral or written motion for new trial, based on the weight of the evidence, prior to sentencing. Accordingly, we conclude Appellant has waived this issue. In conclusion, we find Appellant s first, second and third issues waived for failure to adequately develop an argument in his brief. As an alternative resolution, we adopt the trial court s June 18, 2012 opinion as our own for disposition of these issues on the merits. Additionally, we conclude Appellant s fourth issue, having been finally decided in his earlier appeal is now collaterally estopped, and we are bound by that decision. (Footnote Continued) _______________________ Pa.R.Crim.P. 607(A). - 13 - We also J-S75023-12 conclude that Appellant has waived his challenge to the weight of the evidence by failing to raise the issue before the trial court prior to his appeal. Accordingly, we affirm the April 24, 2012 judgment of sentence. Judgment of sentence affirmed. - 14 -

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