Commonwealth v. Carr

• Decision Date: 15 November 2022
• Docket Number: 646 MDA 2022,J-S28007-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. ALIEK QUASIM CARR Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA
v.
ALIEK QUASIM CARR Appellant

No. 646 MDA 2022

No. J-S28007-22

Superior Court of Pennsylvania

November 15, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered April 23, 2021 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0002119-2017

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM

OLSON, J.

Appellant, Aliek Quasim Carr, appeals from the April 23, 2021 judgment of sentence that imposed an aggregate term of incarceration of 6 to 24 months' (minus 1 day) after the trial court convicted Appellant, in a non-jury trial, of manufacture, delivery, or possession with the intent to manufacture or deliver a controlled substance and criminal use of a communication facility.^[1]We affirm.

The trial court summarized the factual history as follows:

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Officer Clinton Gardner [("Officer Gardner")] of the Williamsport Bureau of Police and Detective Devin Thompson [("Detective Thompson")] of the South Williamsport Police Department testified on behalf of the Commonwealth. The Commonwealth also submitted a copy of the application for [a] search warrant for [Appellant's] black ["flip" cellular telephone]. The evidence established the following. On October 21, 2017, [Officer] Gardner was working alone in full uniform in a marked police vehicle in the area of High Street and Sixth Avenue near [a gas station and convenience store in Williamsport Pennsylvania. Officer] Gardner knew the area to be a high crime area, where he had conducted multiple narcotics related arrests. When [Officer] Gardner [drove his police vehicle] into the parking lot[,] he noticed a heavier[-]set black male with a noticeable limp, later identified as [Appellant] pumping gas into a vehicle with [an] Illinois [license plate Appellant] looked over at [Officer] Gardner multiple times, and walked over to a nearby vehicle [(a white van)] and began talking to an individual[ in the white van]. [Officer] Gardner knew that a heavier[-]set black male with a limp matching [Appellant's] description [] recently fled from a narcotics[-]related stop with a fellow officer. [Officer Gardner interpreted Appellant's movement toward the white van as an effort by Appellant to separate himself from the vehicle bearing the Illinois license plate. Officer] Gardner then parked his [police] vehicle, so as to not block [Appellant's vehicle], and walked over to [Appellant. Officer] Gardner asked [Appellant] "what was going on and what he was doing in the area." [Appellant] responded he was in town for court and to see friends. Upon [Officer] Gardner asking [Appellant] what his name was, [Appellant] provided [Officer] Gardner with his Pennsylvania identification [card], which had a Philadelphia[, Pennsylvania] address. [Officer Gardner returned to his police vehicle with Appellant's identification card and, using the police vehicle's on-board computer system, searched for any outstanding warrants issued against Appellant. After Officer Gardner returned Appellant's identification card to him (as discussed in more detail infra), Appellant] then walked back to his vehicle and finished pumping gas as [Officer] Gardner spoke with him and continued to ask him questions. [Appellant] confirmed that the vehicle was a rental. During the interaction, [Officer] Gardner did not indicate to [Appellant] that he was not free to leave, he did not brandish his firearm, and he did not restrict [Appellant's] movements in any way. [Officer] Gardner then asked if [Appellant] had anything illegal on his person. [Appellant] began digging through his pockets, which [Officer] Gardner asked him not to do. While

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[Appellant] was digging through his pockets, [Officer] Gardner observed a [pocketknife], a second cell[ular tele]phone [(the black "flip" telephone)], and an unknown amount of [United States] currency. [Officer] Gardner [then] asked [Appellant] why he had two cell[ular tele]phones and asked if there was anything illegal in the [vehicle].

[Officer] Gardner then asked if he could search the [vehicle]. At first, [Appellant] gave [Officer] Gardner permission to search the driver['s] side [of the vehicle], but then withdrew consent prior to [Officer] Gardner starting his search. [Officer] Gardner then informed [Appellant] he would be calling a [narcotics] canine to the scene based on his observations. [Officer] Gardner's purpose for calling a canine [officer] was: [Appellant's] presence in [a] high narcotics trafficking area, [Appellant] matching the description of an individual that fled during a narcotics[-]related stop, [Appellant] having a Philadelphia address, which in [Officer] Gardner's experience is common for drug traffickers in [the Williamsport] area, the possession of two cell[ular tele]phones, the bundle of [United States] currency on [Appellant's] person, and [Appellant's] use of a rental vehicle, which in [Officer] Gardner's experience was common among narcotics traffickers because [rental vehicles] cannot be forfeited. [Officer] Gardner [testified that he] believed[,] at that point[, Appellant] was detained and would have to wait for a canine [officer] to arrive. After being informed that a canine would be called, [Appellant] offered consent to search [his vehicle,] and [Officer] Gardner explained that [Appellant] did not have to provide consent and that he was not forcing [Appellant] to [permit a] search [of] the vehicle. [Appellant] still agreed to grant [Officer] Gardner consent[. D]uring the search, [Officer] Gardner found small rubber bands, [which in Officer Gardner's experience were] commonly used in the packaging of heroin[,] in the sunglass visor [of the vehicle]. When asked why he had the bands, [Appellant] stated [the bands were] for his hair, but [Officer Gardner observed that Appellant] had a shaved head at the time.

[After Officer Gardner searched Appellant's vehicle, but before the arrival of the narcotics canine, Officer] Gardner searched [Appellant's] person. The search of [Appellant's person] yielded two cell[ular tele]phones and ninety-five dollars in mostly twenty[-]dollar denominations in two separate bundles. [Officer] Gardner testified that the use of two cell[ular tele]phones, twenty[-]dollar denominations, and separate bundles of [currency] were all factors consistent with narcotics trafficking.

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[Detective] Thompson then arrived with his canine [officer] and was informed of the ongoing situation. The [narcotics] canine alerted several times to the rear portion of the middle console [of the vehicle]. [Police] officers then [removed] the rear portion of the console to find a grey[-]colored satchel that contained a worn prescription bottle containing fifty oxycodone pills with [Appellant's] name on [the bottle]. Based on [Officer] Gardner's training and experience and because of the location [where the prescription] bottle was stored, [its] worn condition[,] and the pills having different insignias/stamps, [Officer Gardner concluded] the pills were for illegal sale. [Appellant] was then taken into custody and searched further.

[Officer] Gardner then obtained a search warrant for [Appellant's] black ["flip" cellular tele]phone. The search warrant [described] the items to be searched as "any electronically stored information and records, including all call logs, [short message service ("SMS")] and [multimedia messaging service ("MMS")] messages, [electronic mail messages ("emails")], contacts list, photographs, videos, or any other electronic storage devices contained within the above mentioned [cellular tele]phone. In relation to 10/14/17 to 10/21/17 as described below[.] CG#74 [(Officer Gardner's initials and police badge number)]." The items to be seized were "any and all information relating to violations of the Controlled Substance, Drug, Device and Cosmetic Act[, 35 P.S. §§ 780-101 to 780-144,] and [18] Pa.C.S.A [§ 7512] (criminal use of a communication facility) from 10/14/2017 to 10/21/2017." From the search[, police] officers took twenty[-]six photographs of incoming/outgoing messages.

Trial Court Opinion, 12/31/19, at 1-4 (extraneous capitalization, original brackets, and record citations omitted).

On November 3, 2017, law enforcement personnel filed a criminal complaint against Appellant, charging him with the aforementioned crimes. Appellant waived his right to arraignment on December 19, 2017, and requested that the matter be scheduled for trial. On January 4, 2018, the Commonwealth filed a criminal information against Appellant setting forth the

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aforementioned criminal charges. The trial court subsequently placed Appellant's case on the March 2018 trial list. Upon Appellant's request, and without objection from the Commonwealth, Appellant's trial was continued to October 2018, due to Appellant having undergone a medical procedure. Due to Appellant's travel restrictions, which were the result of his medical rehabilitation, Appellant's trial was continued three additional times. On May 31, 2019, the trial court, having been notified by Appellant's counsel that plea negotiations were unsuccessful, and the matter should be set for trial, granted Appellant's continuance and scheduled the matter to proceed to a pre-trial conference on July 9, 2019.

On June 27, 2019, Appellant filed a motion seeking permission to file an omnibus pre-trial motion to suppress evidence nunc pro tunc.^[2] The trial court scheduled argument on Appellant's request for leave to file a suppression motion nunc pro tunc for July 9, 2019, as part of the previously scheduled pre-trial conference. The trial court granted Appellant's request, and on July 11, 2019, Appellant filed an omnibus pre-trial motion to suppress evidence nunc pro tunc ("omnibus motio...