Com. v. West

• Decision Date: 28 November 2007
• Docket Number: No. 541 MDA 2007.,541 MDA 2007.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael David WEST, Appellant.
• Court: Pennsylvania Superior Court

937 A.2d 516

COMMONWEALTH of Pennsylvania, Appellee v. Michael David WEST, Appellant.

No. 541 MDA 2007.

Superior Court of Pennsylvania.

Submitted August 6, 2007.

Filed November 28, 2007.

William Costopoulos, Lemoyne, for appellant.

H. Stanley Rebert, Thomas J. Reilly, Asst. Dist. Attys., York, for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., GANTMAN and COLVILLE^*, JJ.

OPINION BY COLVILLE, J.:

¶ 1 This case is a direct appeal from judgments of sentence at two criminal informations. At No. 1523 CA 2005 ("the delivery case"), Appellant was convicted of delivering cocaine. At No. 2502 CA 2005 ("the motorcycle case"), he was convicted of possessing cocaine with intent to deliver (PWID), possessing cocaine, possessing a small amount of marijuana, and possessing drug paraphernalia.

¶ 2 Appellant was sentenced on both cases in one consolidated sentencing hearing. On the delivery case, he received a mandatory minimum sentence of three to six years' incarceration. For the motorcycle case, the court imposed a mandatory minimum term of five to ten years in prison on the PWID charge and time served on the marijuana and paraphernalia counts. The court then made Appellant's sentences concurrent for an aggregate term of five to ten years' imprisonment.

¶ 3 In the delivery case, the issues are: (1) whether the trial court erred in denying Appellant's motion for a new trial based on his weight-of-the-evidence claim; (2) whether the trial court gave an incomplete "corrupt source" jury instruction; and (3) whether trial counsel was ineffective in failing to object to the aforesaid jury instruction.

¶ 4 In the motorcycle case, the issues are: (1) whether there was sufficient evidence to support Appellant's convictions for possessing cocaine and for PWID cocaine; (2) whether Appellant should be granted a new trial because an officer improperly testified that certain evidence found on Appellant indicated an intent to deliver; and (3) whether the trial court erred in denying Appellant's motion to suppress the cocaine and related evidence found in his motorcycle.

¶ 5 In each case, we affirm the judgment of sentence.

The Delivery Case

¶ 6 The delivery case involved allegations of two distinct drug sales. The trial evidence showed the following. At the direction of the police, a confidential informant (CI) telephoned Appellant and arranged to buy two ounces of cocaine at a local restaurant. On the date of the scheduled purchase, the officers searched CI's person and vehicle, ensuring that he possessed neither drugs nor money. They then provided him with $1,900.00 to purchase the cocaine and placed a recording device on him.

¶ 7 The police followed CI to the restaurant and observed the meeting between him and Appellant at that location. Appellant entered CI's truck; the vehicle moved a short distance. Appellant then exited the truck. Thereafter, police met with CI who gave them the two ounces of cocaine he had just purchased. At trial, CI testified he bought the drugs from Appellant.

¶ 8 The officers arranged a second drug purchase. CI again phoned Appellant, asking to buy four ounces of cocaine. Appellant agreed to sell only two. At the appropriate time, the police once again searched CI and his truck to ensure he did not have drugs or money. The officers provided him with $2,300.00, the price demanded by Appellant. They also placed a recording device on him. Police observed CI while he drove to Appellant's apartment. He entered and then exited the residence. The police followed CI to another location where he produced two ounces of cocaine. Thereafter, police entered the apartment but did not find Appellant. CI would later testify, at trial, that he bought the cocaine from Appellant.

¶ 9 Appellant was charged with two counts of delivering cocaine. A jury acquitted him in connection with the second incident but convicted him of delivery with regard to the first. He was later sentenced.

¶ 10 Appellant filed a direct appeal in which this Court found all of his claims waived for failing to comply with Pa.R.A.P. 1925(b). Later, after he filed a petition under the Post Conviction Relief Act ("PCRA"), the PCRA court reinstated his direct appeal rights nunc pro tunc. He now appeals.

¶ 11 Weight of the Evidence. The weight given to trial evidence is a choice for the factfinder. Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super.2007). If the factfinder returns a guilty verdict, and if a criminal defendant then files a motion for a new trial on the basis that the verdict was against the weight of the evidence, a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Cousar, ___ Pa. ___, 928 A.2d 1025, 1036 (2007).

¶ 12 When a trial court denies a weight-of-the-evidence motion, and when an appellant then appeals that ruling to this Court, our review is limited. Id. at 1035, 1036. It is important to understand we do not reach the underlying question of whether the verdict was, in fact, against the weight of the evidence. Id. at 1036. We do not decide how we would have ruled on the motion and then simply replace our own judgment for that of the trial court. Instead, this Court determines whether the trial court abused its discretion in reaching whatever decision it made on the motion, whether or not that decision is the one we might have made in the first instance. Id.

¶ 13 Moreover, when evaluating a trial court's ruling, we keep in mind that an abuse of discretion is not merely an error in judgment. Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa.Super.2007). Rather, it involves bias, partiality, prejudice, ill-will, manifest unreasonableness or a misapplication of the law. Id. By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record. Id.

¶ 14 In this case, Appellant contends the verdict was against the weight of the evidence because CI's testimony was "too shaky" and uncertain and was not sufficiently supported by corroborating evidence. Appellant's Brief at 42. Appellant's point is that CI was a "snitch" who had been arrested and who testified against Appellant to gain favor with the police. Appellant's Brief at 42, 47. He contends CI's testimony was self-serving and not credible. Moreover, Appellant claims the jury rejected CI's testimony with respect to the second incident and that his testimony regarding the first buy should likewise be rejected.

¶ 15 Appellant has not persuaded us that the trial court abused its discretion in denying his motion for a new trial based on the weight of the evidence. We see no evidence of bias, prejudice, partiality, ill-will, manifest unreasonableness, or a misapplication of the law. Moreover, it is apparent that the trial court's conclusion is supported by the record. The jury was free to make credibility determinations and accept or reject CI's testimony, and all the other testimony, as it chose. In light of the evidence discussed supra, the trial court did not abuse its discretion by determining the guilty verdict did not shock one's conscience. Therefore, Appellant's weight claim fails.

¶ 16 Jury Charge and Counsel's Ineffectiveness. During its charge, the court directed the jurors to view CI's testimony with disfavor because he was expecting consideration from the Commonwealth in return for his cooperation. The court also instructed the jury to examine CI's testimony closely and accept it only with care and caution. Appellant's trial counsel did not object.

¶ 17 Appellant here contends the court's instruction was inadequate. No part of a jury charge may be assigned as error unless a specific objection is made thereto before the jury deliberates. Pa.R.Crim.P. 647(B). Also, matters not raised in the trial court may not be pursued on appeal. Pa.R.A.P. 302(a). Thus, having not objected to the instruction in the trial court, Appellant cannot now raise this claim. It has been waived.

¶ 18 Nevertheless, Appellant argues counsel was ineffective in not objecting to the charge. As this case is on direct appeal, we will not decide the issue of counsel's ineffectiveness. See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 739 (2002). Rather, we dismiss that issue without prejudice. Appellant may raise claims of ineffectiveness in a PCRA petition. Id.

¶ 19 For the foregoing reasons, we affirm the judgment of sentence in the delivery case.

The Motorcycle Case

¶ 20 The record reveals the following facts. A police officer was on patrol in York Township. At roughly 1:00 a.m., he saw a black man riding a red and black sports-style motorcycle. The man's helmet, gloves and protective riding coat were each red and black. He also wore jeans. The cyclist turned onto a drive leading into a Holiday Inn.

¶ 21 Approximately one hour later, the officer recalled there was a homicide warrant for a black man who had been operating a red and black sports bike. The officer drove to the Holiday Inn. The motorcycle he had seen earlier was in the lot. No other motorcycles were present. The officer ran the license plate number from the bike and determined it was registered to Appellant. He also determined there was an arrest warrant for Appellant for the sale of cocaine. The officer then called additional police to the scene.

¶ 22 Next to Appellant's motorcycle was a white car. Inquiring of Holiday Inn personnel, the officers learned a certain female guest had registered the car with the inn. They further determined Appellant was not a registered guest. Police had the inn clerk call the female and ask her to come to the lobby to speak with police. She did so and, while police were talking with her, Appellant exited an elevator into the lobby. He was wearing the same clothing as when the officer observed him riding the motorcycle. Appellant then identified himself by name.

¶ 23 Police arrested Appellant because of the outstanding warrant. They searched his person and a backpack he...