Commonwealth v. Parrish

• Decision Date: 15 June 2018
• Docket Number: No. 175 MDA 2017,175 MDA 2017
• Citation: 191 A.3d 31
• Parties: COMMONWEALTH of Pennsylvania v. Braemar PARRISH, Appellant
• Court: Pennsylvania Superior Court

191 A.3d 31

COMMONWEALTH of Pennsylvania

v.Braemar PARRISH, Appellant

No. 175 MDA 2017

Superior Court of Pennsylvania.

Submitted January 22, 2018

Filed June 15, 2018

Reargument Denied August 13, 2018

Jonathan Blum, Public Defender, Forty Fort, for appellant.

Stefanie J. Salavantis, Assistant District Attorney, Wilkes–Barre, for Commonwealth, appellee.

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:

Appellant, Braemar Parrish, appeals from the Judgment of Sentence imposed following his convictions of two counts each of Possession with Intent to Deliver ("PWID") (heroin and methamphetamines), Conspiracy, and Possession of a Controlled Substance, and one count each of Possession of Drug Paraphernalia and Firearms Not to be Carried Without a License.¹

The charges in this case stem from the police search of a vehicle driven by Pernell Riddick. When the police pulled the vehicle over, they observed Appellant seated in the back seat. The police found in the front seat a black bag that contained drugs, drug paraphernalia, and a gun. The police also found a gun under the front passenger seat and marijuana in a cup holder on the front passenger-side door. Appellant contends, inter alia , that the evidence was insufficient to establish that the he even knew about the contraband, let alone exercised dominion and control over it. We agree and, accordingly, reverse Appellant's Judgment of Sentence.

The facts and procedural history most relevant to this appeal are as follows. On August 7, 2014, after observing a tinted-windows violation, Kingston Police Officer John Bevilaqua and Sergeant Height² conducted a traffic stop of a Lincoln MKZ four-door sedan. The officers followed the vehicle without lights or sirens for several blocks, and then indicated to the driver of the vehicle, Mr. Riddick, that he should pull the vehicle over. After Mr. Riddick pulled over, the officers immediately approached the vehicle and while doing so noticed it rocking back and forth.

Mr. Riddick rolled down the window, and the police officers smelled marijuana and observed a plastic baggie containing marijuana in plain view. They also observed Mr. Riddick straddling the center console between the two front seats and the grip of a silver handgun protruding from under the front passenger seat. The officers further observed Appellant seated behind the driver's seat with his hands on the headrest of the driver's seat.

The officers arrested Mr. Riddick and Appellant and subsequently searched the entire vehicle. On the floor on the passenger side of the front of the vehicle, the officers found a black bag. In the bag was a loaded .45 caliber handgun,³ 250 wax paper packets of heroin packaged into bundles, 12 individual packets of methamphetamines, a baggie of loose heroin, two scales, packaging material, and unknown powder substance, a spoon, and a magazine containing .40 caliber ammunition. The officers also found in the front of the passenger cabin of the vehicle, marijuana on the passenger-side door and a .40 caliber handgun protruding from under the passenger-side seat.

In the glove compartment, the officers found an extra magazine of bullets, and in the trunk, they found a bulletproof vest. The officers also found $1,335 in cash on Appellant and $2,168 on Riddick. During his arrest, Appellant cooperated with the police, correctly identified himself, and did not attempt to flee.

Police charged Appellant with the above crimes,⁴ as well as one additional count of Possession of a Controlled Substance and one count each of Receiving Stolen Property and Person Not to Possess Firearm.⁵ Before trial, the court severed the Person Not to Possess Firearm offense from Appellant's other offenses.

At Appellant's jury trial, Officer Bevilaqua testified regarding the above details of the stop and search of the vehicle. In addition, he stated that he observed the vehicle "rocking back and forth in a violent manner." N.T., 1/19/16, at 60. Because of the heavy window tint, however, he "could not see inside the vehicle to see any furtive movement being conducted." Id. He testified that when he was finally able to see into the car, he observed Mr. Riddick straddled over the center console of the vehicle, half on the passenger side and half on the driver's side. He saw Appellant, who was between 5'11" and 6' tall and weighed 270 lbs., seated in the back seat on the driver's side with his hands resting on the headrest in front of him. Id. at 60–62, 76–77. Officer Bevilaqua also testified that he smelled marijuana emanating from the vehicle. Id. at 60–61.

Officer Bevilaqua further testified that, after Sergeant Height observed a small bag of marijuana in plain view in the front of the car in the passenger side door, Mr. Riddick admitted that it was his. As the officers removed Mr. Riddick from the car, Sergeant Height observed a .40 caliber Smith and Wesson under the front passenger seat. Id. at 63, 78.

On cross-examination, Officer Bevilaqua testified that Appellant was not the registered owner of the vehicle and Appellant did not have a key to the car's glove compartment or trunk. Id. at 77, 85–86. Moreover, Officer Bevilaqua stated that, because he first saw Appellant in the back seat, he inferred that Appellant was not the vehicle's operator. Id. at 86. Officer Bevilaqua confirmed that Appellant correctly identified himself, cooperated with him and Sergeant Height, and did not attempt to flee. Id. at 88.

Officer Bevilaqua also testified that police did not test any of the items found in Mr. Riddick's vehicle for fingerprints. Id. at 86–87.

Kingston Police Detective Edward Palka testified for the Commonwealth as an expert in street-level drug interdiction. Id. at 112. He reviewed the evidence, prepared an expert report, and concluded that Appellant possessed the controlled substances not for personal use, but to sell to others. Id. at 113–116.

Detective Palka also concluded that the presence of loaded handguns and a bulletproof vest reflected the inherent dangerousness of drug dealing. Id. at 126.

In concluding that Appellant "constructively possessed" the handguns, Detective Palka testified that the "fact that there was [sic ] two handguns present[,] not just one[,] to me shows that both individuals possessed a handgun. And in all the investigations that I have done, I don't remember ever coming—having more than one handgun." Id. He reiterated that he does not generally come across one person carrying more than one gun in a car. Id. at 130.⁶

Timothy Evans testified on Appellant's behalf. Mr. Evans testified that Appellant had been at a party hosted by Mr. Evans all afternoon on the day of Appellant's arrest and stayed until approximately 2:00 AM. Id. at 151–52. Mr. Evans testified that he asked Mr. Riddick to drive Appellant home at the end of the party. Id. at 152. Mr. Evans further testified that, when Appellant left the party in Mr. Riddick's car, Appellant was not carrying a satchel or any kind of bag. Id. at 153. He also stated that he saw Appellant lay down in the back seat when Appellant got in the car. Id.

On January 20, 2016, the jury convicted Appellant of the above charges.⁷ The court sentenced Appellant on March 22, 2016, to an aggregate term of 88 to 176 months' incarceration and ordered Appellant to pay $356 in restitution to the Pennsylvania State Police Lab for crime lab processing fees.⁸

On March 30, 2016, Appellant filed a Motion for Modification of Sentence and Motion for New Trial. Two days later, he filed a Motion to Compel Discovery. On April 4, 2016, Appellant filed a Motion to Vacate Sentence on Firearms Not to be Carried Without a License and to Prohibit Trial on Person Not to Possess Firearm. On April 27, 2016, the Commonwealth filed a Response in Opposition to Appellant's Motion to Vacate and Prohibit Trial.

On July 28, 2016, Appellant's Motion for Modification of Sentence and Motion for a New Trial were deemed denied by operation of law; however, the trial court clerk did not enter an order advising Appellant as required by Pa.R.Crim.P. 720(B)(3)(c) and 720(B)(4). Instead, on December 20, 2016, the trial court entered an Order denying Appellant's Motion to Modify Sentence and Motion to Vacate and Prohibit Trial. On January 18, 2017, the court entered an Order finding Appellant's Motion for a New Trial moot as having been denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a).⁹

On January 19, 2017, Appellant filed a Notice of Appeal from his Judgment of Sentence. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following four issues on appeal:

1. Whether the Commonwealth presented legally insufficient evidence that Appellant, beyond a reasonable doubt, actively or constructively possessed the firearms, drugs, and drug paraphernalia relating to the crimes charged?

2. Whether the trial court erred in denying a new trial based on violations by the Commonwealth of discovery obligations under the United States and Pennsylvania Constitutions, the Pennsylvania Rules of Criminal Procedure[,] and the rule of Brady v. Maryland and its progeny, and after-discovered evidence concerning jail calls between the [c]o-defendant's mother and [Appellant]?

3. Did the trial court abuse its discretion in allowing the Commonwealth to introduce testimony from the expert witness to say that the presence of two handguns indicates that two people possessed a handgun, thereby offering an opinion as to guilt, over the objection by [Appellant's] counsel?

4. Was Appellant subjected to an illegal sentence with the [c]ourt ordered restitution to be paid when there was no victim as defined by the holding in Commonwealth v. Veon [, 637 Pa. 442, 150 A.3d 435 (Pa. 2016) ]?

Appellant's Brief at 1.

Sufficiency of the Evidence

Appellant's first issue, in which he challenges the sufficiency of the Commonwealth's evidence in support of his convictions, is dispositive of this appeal. In this issue, Appellant argues that because Appella...