Com. v. Holt

• Decision Date: 03 April 1998
• Citation: 711 A.2d 1011
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Farion HOLT, Appellant.
• Court: Pennsylvania Superior Court

Page 1011

711 A.2d 1011

COMMONWEALTH of Pennsylvania, Appellee, v. Farion HOLT, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 5, 1998.

Filed April 3, 1998.

Ronald Keeler, Bedford, for appellant.

Thomas S. Ling, Dist. Atty., Bedford, for the Com., appellee.

Before TAMILIA, ORIE MELVIN and BROSKY, JJ.

ORIE MELVIN, Judge:

This is an appeal from the judgment of sentence. After a hearing, appellant Farion Holt's motion to suppress evidence was denied by a suppression court. Appellant was found guilty by a jury of three counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act and one count of criminal conspiracy. ¹ Specifically the drug violations were for Possession of a controlled substance (cocaine), ² Possession with Intent to Deliver (cocaine), ³ and Possession of a controlled substance (marijuana). ⁴ The criminal conspiracy count charged that appellant conspired with Willie Day III to possess cocaine with the intent to deliver. Appellant was sentenced to an aggregate period of incarceration of not less than four and one-half (4- 1/2) nor more than nine (9) years.

On appeal, the defense raises five allegations of error. First, he claims that the trial court erred in denying appellant's request for dismissal of the charges when the Commonwealth failed to respond to the Bill of Particulars. Second, appellant alleges that the trial court erred in denying the defense's Motion to Suppress. Third, appellant argues that the evidence was insufficient to support the finding of constructive possession. Fourth, appellant argues that the evidence was insufficient to support the conviction of criminal conspiracy. And fifth, the appellant alleges that the jury's verdict was against the weight and sufficiency of the evidence. We do not agree and affirm the trial court.

Appellant's first complaint is that the trial court erred in denying his Motion to Dismiss because a bill of particulars was never furnished as requested by the appellant. Considering the procedural history of this case, we do not agree that any sanction, let alone such a harsh one as dismissal of the charges, is warranted here. The purpose of a bill of particulars is to give notice to the accused of offenses charged in the Information so as to allow him to prepare for trial and to avoid surprise. Commonwealth v. Larsen, 452 Pa.Super. 508, 682 A.2d 783 (1996). While the District Attorney denies receiving a copy of the bill of particulars, a time stamped copy is included in the certified record showing that it was filed on July 19, 1996 along with a letter request for discovery. ⁵ In response to the requested discovery the Commonwealth provided the police reports. In addition, appellant received the benefit of all of the evidence at a suppression hearing held on November 20, 1996. Our review of the transcripts reveals that all of the testimony that was eventually presented at trial was presented at the suppression hearing. Thus, appellant not only had the information in advance of trial, he also had an opportunity to cross-examine the witnesses.

Furthermore, the defense fails to specifically point out what evidence they did not receive and how they were prejudiced by not having it. Instead, appellant makes the bald allegation that he did not get everything he requested, and if he had, he might have been better prepared to defend. Thus, we find no demonstration of prejudice or surprise to the defense for not having any specific evidence. Because we believe appellant received sufficient notice of the offenses charged and substantially all of the evidence in the possession of the Commonwealth, we find that the trial court properly denied the motion to dismiss.

In the next issue raised by the appellant, he claims that the trial court erred by denying the motion to suppress the evidence found in the search of the small brown tweed bag that appellant had at his feet. While the appellant admits in his brief that he consented to the search, without specifically stating it, appellant is now arguing that the consent was involuntary because of the fact that he was approached by two Drug Task Force Agents while he was inside the close confines of the bus, they were uniformed and they were allegedly crowding him when they asked to search his bag. However, the uncontroverted facts presented at the hearing showed that the agents were not in uniform, did not crowd appellant, left the aisle open, left the bus door open and did not delay the bus' departure in any way. Appellant did not testify, either at the suppression hearing or at trial, to contradict the Commonwealth's evidence that this was merely an encounter.

We have recently reiterated the standard of review of a suppression court ruling in Commonwealth v. Vasquez, 703 A.2d 25, 30 (Pa.Super.1997) where we stated:

When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous. Commonwealth v. D'Amato, 514 Pa. 471, 482, 526 A.2d 300 (1987). Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435, 438 n. 5 (1975).

citing Commonwealth v. O'Shea, 523 Pa. 384, 567 A.2d 1023, 1028 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990).

In the present case, the defense never presented any witnesses or testimony. Therefore, we only have the evidence as presented by the Commonwealth to consider. In addition, on December 10, 1996, the suppression court filed an extensive statement that included findings of fact and conclusions of law. In that statement, the suppression court held that neither appellant nor Mr. Day were seized under the Fourth Amendment of the U.S. Constitution and/or Article 1 of the Pennsylvania Constitution. The suppression court also found that under the circumstances, a reasonable person would have concluded that he was able to decline the agents' requests and end the encounter with the police. Therefore, the suppression court found that the search of the small tweed bag was voluntarily and intelligently consented to by appellant. While we do not agree with the trial court's basis for permitting the search, we do agree with the court's result that the evidence should not be suppressed.

It is important at this point to understand the facts presented at the suppression hearing. Ronald Paret, a narcotics agent with the Pennsylvania Attorney General's Office testified that on June 20, 1996 he was in Breezewood, Bedford County, at a bus terminal rest stop conducting a drug interdiction operation. At approximately 7:40 a.m., Agent Paret observed the appellant, Farion Holt, a passenger on a Greyhound Lines bus that had originated in New York City at approximately 12:30 a.m. that same day. Agent Paret observed each of the fifteen to twenty passengers as they exited the bus; and he noticed the appellant depart the bus with another individual, later identified as Willie Day. The men watched Agent Paret and continued to look over their shoulders at Agent Paret several times as they walked from the bus to the restaurant, turning their heads to keep an eye on him. It was Agent Paret's testimony that he found this behavior to be suspicious because no other passengers were concerned with his presence except these two men.

Agent Paret testified that after both men were in the restaurant together for about ten minutes, appellant exited the restaurant to smoke a cigarette. He saw Mr. Day leave the restaurant alone with a large green carry-on bag and a Styrofoam food container. Agent Paret then saw Mr. Day board the bus, leave the articles on a seat in the back of the bus and leave the bus. In the meantime, appellant re-boarded the bus. He had nothing in his hands when he left the bus and nothing when he returned. At that point Agent Paret and Agent Nastari boarded the bus. They were wearing windbreaker type jackets that identified them as Pennsylvania State Attorney General Agents. They were armed, but their weapons were concealed under their jackets. After speaking to another passenger, the agents spoke to the appellant. They identified themselves and in the course of their conversation, the agents asked if they could see appellant's bus ticket. Agent Paret stood behind appellant's seat. The aisle was open and the door to the bus remained open. Agent Nastari stood one seat in front of the appellant's seat but on the opposite side of the bus. From the ticket appellant produced, Agent Paret learned that the trip originated in Indianapolis and took eighteen hours to reach New York City. The ticket also revealed a return trip after an eight-hour stay. Appellant was on his way back to Indianapolis, another eighteen hour trip, when the bus made this lay-over in Breezewood, Bedford County. Moreover, the agent noticed that the ticket was paid for in cash and issued in the name of "T. Rice." When asked if he had any identification, the appellant produced a state issued identification card bearing the name "Holt." The agent asked the appellant his name to which he replied, "Farion Holt." When asked why the name on the ticket differed from his, the appellant stated that his cousin had purchased the ticket. At that point the agent noticed a small brown tweed carry-on bag that was at appellant's feet. Appellant advised the agents that this was the only piece of luggage he had. The agent asked...