Com. v. Bostick
| Decision Date | 30 September 2008 |
| Docket Number | No. 2228 EDA 2007,2228 EDA 2007 |
| Citation | 958 A.2d 543,2008 PA Super 233 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Nashadeem BOSTICK, Appellant. |
| Court | Pennsylvania Superior Court |
Gary S. Server, Philadelphia, for appellant.
Hugh J. Burns, Jr., Asst. Dist. Atty., for Com., appellee.
¶ 1 Nashadeem Bostick appeals from the judgment of sentence of five to ten years' imprisonment imposed following his convictions of possession with intent to deliver a controlled substance (PWID)1 and conspiracy.2 Appellant challenges the trial court's denial of his pretrial motion to suppress evidence and the sufficiency of the evidence. We affirm.
¶ 2 The trial court set forth the following facts in its opinion filed pursuant to Pa. R.A.P.1925(a):
On December 16, 2006, at approximately 7:00 a.m., Officers [Paul] Perez and [Richard] Rivera were conducting plainclothes surveillance of the area at 8th and Indiana Streets in Philadelphia, with several other officers acting in back-up capacity (N.T. 06/22/07 at 13-15, 16). At the time the officers arrived, a black male, who was never identified, was standing alone at the northeast corner of 8th and Indiana Streets (N.T. 06/22/07 at 17). At 7:15 a.m., a male identified as Melvin Lyons drove up and engaged the unknown male in a brief hand-to-hand transaction, during which Lyons handed the unknown male currency in exchange for small items (N.T. 06/22/07 at 17-18, 19). After Lyons left the area, he was stopped by Officer Crawford, who recovered from his person, two clear, heat-sealed packets of a heroin/fentanyl mixture, stamped "High class the best" (N.T. 06/22/07 at 54-55, 161).
At approximately 7:50 a.m., the officers saw the defendant exit a property at 3018 N. 8th Street, which was located approximately a quarter block away from the corner of 8th and Indiana (N.T. 06/22/07 at 20, 24-25, 36-37). Defendant then walked over to the unknown black male, engaged him in conversation, and handed him small items (N.T. 06/22/07 at 20, 36-37). Shortly thereafter, defendant and the unknown male were approached by another male identified as Ronald Keels, who engaged both men in a brief conversation before handing the defendant U.S. currency (N.T. 06/22/07 at 20-21, 22). Defendant then handed Keels small items in a fist-over-hand motion before Keels left the area (N.T. 06/22/07 at 21, 38). Officer Washington stopped Keels and recovered from his right coat pocket, one white glassine packet, which was stamped "Class the best," and which contained a heroin/fentanyl mixture (N.T. 06/22/07 at 61, 64-65, 161).
After this transaction, defendant walked over to a black 1995 GMC Jimmy, opened the car door, and placed something inside the center console (N.T. 06/22/07 at 23-24, 39-40). He then reentered the property at 3018 N. 8th Street for a short time before rejoining the unknown male on the corner (N.T. 06/22/07 at 23-24, 25-26, 42). The pair was then approached by a male on a bike, identified as Larry Whitehead, who briefly spoke with the defendant before handing the defendant U.S. currency (N.T. 06/22/07 at 26, 42). The defendant then gave Whitehead small objects, and Whitehead left the area (N.T. 06/22/07 at 26, 42). The unknown black male, thereafter, walked away and was not seen again (N.T. 06/22/07 at 27-28). Officer Taylor stopped Whitehead, who, upon seeing police, placed something in his mouth, which was recovered and found to be a clear heat-sealed packet (N.T. 06/22/07 at 77-78, 161-62). That packet contained a white glassine packet of a heroin/fentanyl mixture, which was stamped "High class the best" (N.T. 06/22/07 at 77-78, 81, 161-62).
Defendant thereafter re-entered the property at 3018 N. 8th Street for a short time, and then went back over to the GMC Jimmy, again placing items inside the vehicle's center console (N.T. 06/22/07 at 28, 42-43). As he got out of the car, the defendant was suddenly surrounded by numerous unknown males, who were each handing him money (N.T. 06/22/07 at 29). Upon seeing officers, defendant fled northbound on 8th Street, but was caught and arrested soon thereafter by Officer Campbell (N.T. 06/22/07 at 29, 35-36, 88-89, 104-105). The officer recovered $746 from defendant's person, in the following denominations: twenty-five $20 bills; sixteen $10 bills; ten $5 bills; and thirty-six $1 bills (N.T. 06/22/07 at 49, 89-90).
Thereafter, a man identified as Jerome Sanders opened the door to exit the property at 3018 N. 8th Street, and, upon seeing officers, dropped some items to the floor in the home's vestibule (N.T. 06/22/07 at 90, 105, 108). Sanders was thereafter arrested, and $125 was recovered from his person (N.T. 06/22/07 at 92-93, 105). In addition, five packets of marijuana were recovered from the vestibule floor (N.T. 06/22/07 at 91-93, 105, 162). When officers subsequently entered the property to secure it and to assure that no one else was present who could destroy evidence, a man identified as John Boyd was seen exiting the middle bedroom on the second floor (N.T. 06/22/07 at 30, 96, 105-06, 108). In plain view, on a table just inside the bedroom's open door, were seven bundles of clear heat-sealed packets containing white glassine packets of a heroin/fentanyl mixture (N.T. 06/22/07 at 106-07, 145, 163). Everyone present in the house was arrested (N.T. 06/22/07 at 97, 100, 157).
Officers thereafter executed search warrants on both the GMC Jimmy and the property at 3018 N. 8th Street (N.T. 06/22/07 at 118). From the center console of the GMC Jimmy, officers recovered $1,500 in cash (N.T. 06/22/07 at 118-119, 150). From various shoeboxes in the rear bedroom on the home's second floor, officers recovered: (1) numerous new and unused small Ziplock packets; (2) new and unused glass jars; (3) two boxes of sandwich bags; (4) two scales — one handheld and one digital; (5) one operable AK-47 assault rifle with a magazine containing twenty .32 caliber rounds; (6) one scanner capable of receiving police transmissions; (7) two walkie talkies; (8) $1,354 cash; and (9) large quantities of marijuana, crack cocaine, heroin, heroin/fentanyl mixture, and PCP oil, which were both in bulk and in individually packaged forms (N.T. 06/22/07 at 121-126, 130-32, 142, 163-65). From the middle bedroom, officers recovered eighty-seven heat-sealed packets, which were rubberbanded into bundles, and each of which contained a white glassine piece of paper stamped "Class the best" (N.T. 06/22/07 at 106-07, 125, 145, 163). Eleven of these packets contained pure fentanyl, and seventy-six contained a heroin/fentanyl mixture (N.T. 06/22/07 at 163). From the living room of the home, officers recovered a PGW bill addressed to Darell Cooper, a welfare letter addressed to defendant, and Pennsylvania identification cards belonging to the defendant and to Darell Cooper (N.T. 06/22/07 at 128, 136-37). According to Officer Burgess, an expert in narcotics packaging and narcotics distribution, the drugs in the house were possessed with the intent to deliver (N.T. 06/22/07 at 171-72, 189).
After the Commonwealth rested, the defense presented testimony from Darlene Cooper, who stated that she rented the residence at 3018 N. 8th Street (N.T. 06/25/07 at 7). She testified that, on the date in question, she, Sanders, and a man named Hakeem Ray, were in the dining room when they heard a loud noise outside (N.T. 06/25/07 at 8-9). When Ray opened the front door, the police rushed in and arrested everyone in the house (N.T. 06/25/07 at 8-10). She further testified that, prior to the time Sanders dropped marijuana on the floor in front of police, she had never seen any contraband in the house, and that anyone could have had access to the rear bedroom, which had no locks (N.T. 06/25/07 at 9, 10, 12-13, 15-16, 19-20). She also testified that, although defendant was an occasional weekend visitor, he did not reside in the home (N.T. 06/25/07 at 7-8, 16).
Trial Court Opinion (T.C.O.), 12/12/07, at 2-5.
¶ 3 On June 21, 2007, the trial court held a hearing on Appellant's pretrial "Motion to Suppress Physical Evidence." Following the hearing, the trial court denied Appellant's motion to suppress, and Appellant proceeded to trial before a jury. On June 25, 2007, the jury found Appellant guilty of PWID and conspiracy.3 On August 3, 2007, the trial court sentenced Appellant to an aggregate term of five to ten years' imprisonment. Appellant filed this timely notice of appeal and a timely concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b), in accordance with the trial court's order, in which he preserved the following issues that he now raises in the instant brief:
I. Whether the Court erred in denying the suppression motion where the Commonwealth did not bear its burden of proving that probable cause existed to seize property allegedly within Appellant's dominion or control and where the police exceeded the scope of their authority during a protective sweep.
II. Whether there was sufficient evidence for the jury to conclude that the Appellant was a conspirator in the distribution of illegal substances or that he had dominion or control over the stash of drugs found in the middle bedroom.
Appellant's brief at 6. We address these issues in the order presented.
¶ 4 Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680, 685 (2005). See also Commonwealth v. Booze, 953 A.2d 1263, 1268-69 (Pa.Super.2008) ().
¶ 5 As the basis for his argument that the seizure in this case contravened Appell...
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