Com. v. Brown

• Decision Date: 30 September 1997
• Citation: 701 A.2d 252
• Parties: COMMONWEALTH of Pennsylvania v. George BROWN, Appellant.
• Court: Pennsylvania Superior Court

Page 252

701 A.2d 252

COMMONWEALTH of Pennsylvania v. George BROWN, Appellant.

Superior Court of Pennsylvania.

Submitted June 30, 1997.

Filed Sept. 30, 1997.

Timothy J. Sloan, Ebensburg, for appellant.

David J. Tulowitzki, Asst. Dist. Atty., Ebensburg, for Commonwealth, appellee.

Before DEL SOLE and HUDOCK, JJ., and MONTEMURO, ^* Judge.

DEL SOLE, Judge:

This is an appeal from the judgment of sentence imposed following Appellant's conviction for possession with the intent to deliver a controlled substance, delivery of a controlled substance, and violation of the Pennsylvania Corrupt Organizations Act, 18 Pa.C.S.A. § 911. Appellant raises three issues: (1) whether the trial court erred by admitting evidence of Appellant's subsequent drug violation in Blair County; (2) whether there was sufficient evidence to sustain Appellant's conviction of possession with intent to deliver and delivery of a controlled substance; and (3) whether there was sufficient evidence to sustain Appellant's conviction of corrupt organizations. We affirm.

Appellant was tried non-jury with co-defendants Judy Fortune and Kisha Watts. At trial the Commonwealth offered testimony by Debora and William Klein regarding their purchases of cocaine from the defendants and evidence of Appellant's subsequent drug violation in Blair County. Mr. and Mrs. Klein testified that they were cocaine users and made frequent purchases from the defendants. Both Mr. and Mrs. Klein testified that they did not actually purchase cocaine from Appellant, but rather Appellant would direct them to his co-defendants for the purchase of cocaine. Mrs. Klein indicated, however, that it was apparent that Appellant was the organizer of the group. Mr. Klein testified that Appellant told him that they sometimes made $15,000 per week from the sale of drugs.

Appellant first asserts that the testimony concerning his subsequent drug violation in Blair County should not have been admitted as evidence. The trial court stated that this evidence was admissible as a predicate act to prove a pattern of racketeering which is necessary for a conviction under the Corrupt Organizations Act. The trial court erred in applying this rationale. The Commonwealth is required to specify which predicate acts will be used to prove a pattern of racketeering. Commonwealth v. Stocker, 424 Pa.Super. 189, 622 A.2d 333 (1993). The Commonwealth did not state that the evidence from the Blair County offense would be used in this manner. Also, the trial court mistakenly characterized the Blair County offense, which occurred after the offenses considered in this appeal, as prior offenses.

These mistakes do not alter the outcome, however. At trial, Mr. Klein testified that, following his own arrest, he helped police arrest Appellant with a controlled purchase of drugs. Klein met Appellant and a person named Paul Morris in a Blair County hotel room. Moments after Klein arrived, Morris came out of the room and got the drugs from his car. When he went back into the room, an exchange of drugs for money took place. Klein exited the room and gave a signal to the police that the sale was successfully completed. Police then moved in and arrested Appellant and Morris. This testimony was given and admitted as evidence without objection from Appellant. Later, Detective Sassano of the Altoona Police Department began to testify about the same incident when Appellant objected. Appellant's objection was overruled and it is now argued that evidence of the Blair County offense was inadmissible.

"In order to preserve an issue for review, a party must make a timely and specific objection." Commonwealth v. Montalvo, 434 Pa.Super. 14, 31, 641 A.2d 1176 (1994) citing Commonwealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939 (1992). "The Superior Court will not consider a claim on appeal which was not called to the trial court's attention at a time when any error committed could have been corrected." Id. Because Appellant did not object to Mr. Klein's testimony concerning the Blair County offense, that testimony was admitted as evidence. Although Appellant later objected to Detective Sassano's testimony regarding the controlled buy, this same evidence was already presented to the factfinder. Therefore, we need not consider whether Detective Sassano's testimony was admissible because evidence concerning the Blair County incident was already admitted, without objection, via Mr. Klein's testimony.

Appellant next contends that there was insufficient evidence to convict him of possession with intent to deliver and delivery of a controlled substance. When considering whether evidence introduced at trial is sufficient to sustain a conviction, this court must view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth, as the verdict winner, and consider whether the trier...