Com. v. Mickens

• Decision Date: 08 October 1991
• Citation: 597 A.2d 1196,409 Pa.Super. 266
• Parties: COMMONWEALTH of Pennsylvania v. Phyllis J. MICKENS, Appellant.
• Court: Pennsylvania Superior Court

Page 1196

597 A.2d 1196

409 Pa.Super. 266

COMMONWEALTH of Pennsylvania v. Phyllis J. MICKENS, Appellant.

Superior Court of Pennsylvania.

Submitted May 28, 1991.

Filed Oct. 8, 1991.

Patrick J. Connors, Media, for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Media, for Com., appellee.

Before WIEAND, OLSZEWSKI and MONTGOMERY, JJ.

WIEAND, Judge:

Phyllis J. Mickens was tried by jury and was found guilty of possession of phencyclidine (PCP), possession of PCP with intent to deliver and criminal conspiracy. Post-trial motions were denied following an evidentiary hearing, and Mickens was sentenced to pay fines in the total amount of fifty thousand ($50,000.00) dollars and serve concurrent terms of imprisonment for not less than five (5) years nor more than ten (10) years for possession with intent to deliver and conspiracy. ¹ On direct appeal, she argues that the trial court erred by refusing to suppress drugs seized by the police, by refusing to require that the Commonwealth disclose the identity of its confidential informants, and by incorrectly utilizing the mandatory sentencing provisions of 18 Pa.C.S. § 7508(a)(4). Appellant also argues that her trial counsel was ineffective because he failed to (1) call character witnesses; (2) object to an allegedly erroneous jury instruction pertaining to reasonable doubt; and (3) object to an instruction which allegedly confused appellant's involvement with that of a co-conspirator. We find no merit in these arguments and, therefore, affirm the judgment of sentence.

Appellant first challenges the denial of her pre-trial motion to suppress PCP which had been seized by police from the vehicle owned by her co-conspirator, Diane McNamee. In reviewing the denial of a motion to suppress evidence, we must

'determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).'

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), quoting Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987).

The evidence presented at appellant's suppression hearing was recited in the trial court's post-trial opinion as follows:

In April of 1989, Detective Greenwalt of the Delaware County Criminal Investigation Division, received information from a confidential informant (hereinafter referred to [as] CI-1) regarding this Defendant. The information received was that Co-Defendant MacNamee on a biweekly basis, usually on Thursday nights, met with a black female known as Phyllis at a site along Township Line Road at which time MacNamee purchased a large quantity of Phencyclidine from[ ] [t]he black female known as Phyllis. CI-1 further related to Detective Greenwalt that the black female known as Phyllis could be described as heavy set, in her late forties and was the owner of a store in the City of Philadelphia. CI-1 [ ] further related to Detective Greenwalt that co-defendant MacNamee drives a tan Toyota and Defendant drives a maroon mid-sized vehicle. Detective Greenwalt testified that the information [supplied] in the past by CI-1 led to the arrest of at least two persons, and at all times, Detective Greenwalt found CI-1 to be truthful and reliable.

Detective Greenwalt during the course of this investigation received information from a second confidential informant (hereinafter referred to [as] CI-2). CI-2 corroborated the information the Detective received from CI-1 and further related that co-defendant MacNamee in meeting Phyllis generally obtained 15-30 bundles of PCP at each meeting. Also, CI-2 gave Diane MacNamee's address and Pennsylvania registration of MacNamee's tan Toyota.

After speaking with both confidential informants, Detective Greenwalt verified the information received as to the residence of MacNamee and MacNamee's use and ownership of a tan Toyota. On June 22, 1989, Detective Greenwalt received further information from CI-2 that CI-2 [had] overheard a conversation in which it was inferred that Co-Defendant MacNamee would be leaving later that same day to obtain a large quantity of PCP.

As a result of the information provided by both confidential informants, Detective Greenwalt and Agent Cohen conducted a surveillance of Co-Defendant MacNamee's residence during the afternoon hours of June 22, 1989. At approximately 6:40 p.m. on that day, Co-Defendants Diane MacNamee and Edward Mango, were followed to the Boat House Restaurant, Media, and then north on the Media Bypass to the Township Line Road area. There MacNamee dropped off Mango and proceeded to the Clover parking lot located on Township Line Road in Haverford Township, Delaware County, PA. Shortly thereafter, Detective Jack Azpell observed the Defendant (consistent with the description given by CI-1) meet with Co-Defendant MacNamee and deliver to Co-Defendant MacNamee items in a brown paper bag. After observing the contact between Co-Defendant MacNamee and Defendant, the officers followed MacNamee, who picked up Mango, to the area of Old State Road and Providence Road in Upper Providence, Delaware County. At that time, the officers stopped Co-Defendant MacNamee's vehicle believing that they [had] observed the delivery of a large quantity of PCP at the Clover parking lot based upon the information provided by the confidential informants, the corroborative investigation and observations of the detectives.

As officers approached the vehicle, the very strong odor of PCP emanated from within the vehicle, both MacNamee and Mango were removed from the car and a brown paper bag was observed on the passenger side floor. Inside the bag was a large plastic zip lock bag containing 330 packets of PCP. Co-Defendants MacNamee and Mango were arrested at the scene, and an arrest warrant was issued for Defendant Phyllis Mickens [for her participation in the delivery of PCP on June 22, 1989].

Trial Court Opinion at pp. 1-4. ²

Appellant asserted in a pre-trial suppression motion that the police had acted unconstitutionally when, without a search warrant, they stopped, searched and seized from Diane McNamee's tan Toyota automobile a package containing in excess of one hundred (100) grams of PCP. The trial court refused to suppress the seized PCP, holding that, by delivering the drugs to McNamee, appellant had abandoned possession thereof and, consequently, lacked standing to contest the search of McNamee's vehicle. Appellant now argues that she had automatic standing pursuant to the Pennsylvania Supreme Court's holding in Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), because she was charged with possessory offenses.

In Commonwealth v. Sell, supra, the Supreme Court of Pennsylvania, pursuant to Article I, section 8, of the Pennsylvania Constitution, retained the rule of automatic standing to contest a search where the defendant was charged with a possessory offense. In so holding, however, the Court elaborated that "personal possessions remain constitutionally protected under Article I, section 8 until their owner meaningfully abdicates [her] control, ownership or possessory interest therein." Commonwealth v. Sell, supra at 67, 470 A.2d at 469 (emphasis added). In the instant case, appellant did not have automatic standing to contest the search, for she had delivered possession of the PCP to another person. In Commonwealth v. Rodriquez, 385 Pa.Super. 1, 559 A.2d 947 (1989), the Superior Court held that after a defendant had abandoned property, the automatic standing rule of Sell was no longer applicable to such property. The Court reasoned:

It is well-established that "no one has [ ] standing to complain of a search and seizure of property that he has voluntarily abandoned." Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976); Commonwealth v. Cihylik, 337 Pa.Super. 221, 226-28, 486 A.2d 987, 990 (1985). "The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned." Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978); Cihylik supra [337 Pa.Super.] at 226-28, 486 A.2d at 990.

Commonwealth v. Rodriquez, supra at 4-5, 559 A.2d at 948-949.

Appellant argues that there was no evidence that she had intended to abandon her possessory interest in the PCP delivered to McNamee. The evidence at the suppression hearing established, however, that, upon delivering the drugs to McNamee, appellant and McNamee went their separate ways. Appellant was not present when police stopped, searched and seized from McNamee's vehicle the PCP which appellant had earlier delivered to McNamee. It is abundantly clear, therefore, that appellant had abandoned both possession and control over the PCP and could no longer have any reasonable expectation of privacy with respect thereto. The trial court properly concluded from the evidence that appellant had abandoned the drugs and, therefore, lacked standing to contest the stop and search of McNamee's vehicle. See: Commonwealth v. Bulling, 331 Pa.Super. 84, 101-104, 480 A.2d 254, 263-264 (1984) (defendant lacked standing to contest seizure by police of heroin which he had sold to another and credit cards which he had voluntarily discarded).

Appellant next challenges the denial of a pre-trial motion to discover the identity of the confidential informants who had provided information to police regarding her...