Com. v. Morgan, M.

J-S27003-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MILTON MORGAN : : Appellant : No. 236 WDA 2018

Appeal from the Judgment of Sentence December 21, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008291-2016

BEFORE: OLSON, J., OTT, J., and COLINS*, J. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 10, 2019

Appellant, Milton Morgan, appeals from the judgment of sentence entered on December 21, 2017 in the Criminal Division of the Court of Common Pleas of Allegheny County. We affirm.

We adopt the trial court’s thorough recitation of the factual background of this case. See Trial Court Opinion, 9/6/18, at 3-6. At the conclusion of trial on September 1, 2017, a jury found Appellant guilty of four counts of possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30), and two counts of possession of a controlled substance, 35 P.S. § 780-113(a)(16). Thereafter, on December 21, 2017, the trial court imposed an aggregate sentence of three to six years’ incarceration.

Appellant filed a pro se notice of appeal on January 18, 2018. After extending the deadline in which to file his concise statement of errors

____________________________________ * Retired Senior Judge assigned to the Superior Court.

J-S27003-19

complained of on appeal,1 Appellant filed a timely counseled concise statement on June 29, 2018 listing two of the three issues included in his brief to this Court. See Pa.R.A.P. 1925(b). The trial court issued its Rule 1925(a) opinion on September 6, 2018.

Appellant’s brief identified three issues for our consideration.

[Whether this] case must be remanded to the [trial court] for a hearing to determine if [Appellant] intends to discontinue this appeal and file a [petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,] in order to effectuate [a resentencing order entered on September 25, 2018?]

[Whether the trial court] erred in denying the defense objection to Detective DeTemple’s testimony that the [confidential informant] identified [Appellant] from a picture, when the [confidential informant] did not testify, and the out of court statement was clearly hearsay[?]

[Whether the assistant district attorney] committed prosecutorial misconduct during closing argument by stating that drug dealers like [Appellant] kill [confidential informants], and stating the [confidential informant’s] friend died from what [Appellant] did, when neither statement was supported by any facts in evidence, and both statements were meant to cast [Appellant] in a negative light and inflame the jury, thereby depriving [Appellant] of his constitutionally guaranteed right to a fair trial and due process[?]

Appellant’s Brief at 6.

Appellant’s first issue arose from an unusual set of events that occurred long after he filed his notice of appeal and, indeed, after he filed his concise statement and the trial court issued its Rule 1925(a) opinion. Hence, the issue ____________________________________________

1 Appellant requested extensions of the filing date in order to receive transcripts of the proceedings before the trial court.

-2-

J-S27003-19

is not included in Appellant’s concise statement. Appellant’s brief explained the events underlying this issue as follows:

On September 25, 2018, [Appellant] appeared before [the trial court] to proceed to trial on other, unrelated criminal cases.[] [] The record reflects that [Appellant] informed the [trial c]ourt that he wanted to withdraw the [instant] appeal and instead file an “oral PCRA,” [to allow the trial court] to vacate the [sentence imposed in this case] and to resentence [Appellant]. Accordingly, [the trial court] accepted [Appellant’s] withdrawal of the instant appeal, granted his oral PCRA, vacated the sentence imposed on December 21, 2017, and resentenced [Appellant to two to four years’ incarceration. The trial court retained] jurisdiction. [Appellant] was given credit for all time served, paroled forthwith, and interest in the underlying case closed.

Appellant’s Brief at 11 (record citations omitted).

Appellate counsel concedes that she was not present for the trial court proceedings that took place on September 25, 2018. After learning what occurred, however, counsel asked Appellant to confirm whether he sought to discontinue this appeal and to take other necessary steps to effectuate the modified sentencing scheme outlined during the September 25, 2018 hearing. To date, Appellant has not responded to counsel’s inquiries. Asserting that Appellant is entitled to pursue the benefits of the amended sentence imposed during the September 25, 2018 hearing, counsel requests that this case be remanded to the trial court for a hearing to address whether Appellant intends to discontinue this appeal.

-3-

J-S27003-19

For several reasons, we are unable to accede to counsel’s request.2 As a preliminary matter, absent extraordinary circumstances that permit a trial court to invoke its inherent powers to modify orders that contain patent or obvious mistakes, Pennsylvania trial courts surrender their authority to amend or rescind orders 30 days after entry or where an appeal has been lodged. See 42 Pa.C.S.A. § 5505. Section 5505 governs modification of orders and provides:

§ 5505. Modification of orders

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.C.S.A. § 5505.

When applying § 5505 to judgments of sentence, this Court has explained:

Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Quinlan, 639 A.2d 1235, 1238 (Pa. Super. 1994). Generally, once the thirty-day period is over, the trial court loses the power to alter its orders. Quinlan, 639 A.2d at 1238. When an appeal is taken, the trial court has no jurisdiction to modify its sentence. Id. We note, however, that the time constraint imposed by section 5505 does not affect ____________________________________________

2 The certified record includes neither transcripts of the September 25, 2018 hearing nor orders reflecting the relief allegedly awarded by the trial court. As such, we are unable to confirm that the trial court took the actions described by counsel. Our analysis, therefore, should be read as reasons we reject counsel’s request for remand and not a definitive determination that the trial court erred in the proceedings that occurred before it.

-4-

J-S27003-19

the inherent powers of the court to modify a sentence in order to “amend records, to correct mistakes of court officers or counsel's inadvertencies, or to supply defects or omissions in the record....” Id. at 1239. Therefore, where the mistake is patent and obvious, the court has the power to correct it even though the 30-day appeal period has expired. Commonwealth v. Rohrer, 719 A.2d 1078, 1080 (Pa. Super. 1998). It is also well-established that where a showing of fraud or another circumstance “so grave or compelling as to constitute ‘extraordinary causes justifying intervention by the court,’” then a court may open or vacate its order after the 30-day period has expired. Cardwell v. Chrysler Fin. Corp., 804 A.2d 18, 22 (Pa. Super. 2002).

Commonwealth v. Walters, 814 A.2d 253, 255-256 (Pa. Super. 2002), appeal denied, 831 A.2d 599 (Pa. 2003).

In this case, the trial court imposed sentence upon Appellant on December 21, 2017. Thereafter, the court purported to amend Appellant’s sentence on September 25, 2018, approximately nine months later. As such, the court’s authority under § 5505 to modify Appellant’s sentence within 30 days had long since expired. In addition, the trial court lost jurisdiction to amend its sentence once Appellant filed an appeal to this Court on January 18, 2018. Lastly, there is no claim that the trial court modified Appellant’s sentence to correct a patent or obvious mistake or to address a fraud. Since the court lacked jurisdiction to act, the order amending Appellant’s sentence on September 25, 2018 would be null and void. See id. at 256.

Not only did the trial court lack authority to modify Appellant’s sentence under § 5505, it also lacked authority to resentence Appellant by way of a collateral proceeding. Appellant did not file a written PCRA petition but instead tendered an oral request for collateral relief. Entertaining an oral request for

-5-

J-S27003-19

collateral relief (while a direct appeal is pending) is improper in several respects.

Rule 901 of our rules of criminal procedure governs the initiation of collateral proceedings. In relevant part, it states: “A proceeding for post-conviction collateral relief shall be initiated by filing a petition and [three] copies with the clerk of the court in which the defendant was convicted and sentenced.” Pa.R.Crim.P. 901(B). The commentary to Rule 901 admonishes: “By statute, a court may not entertain a request for any form of relief in anticipation of the filing of a petition for post-conviction collateral relief.” Pa.R.Crim.P. 901(B), cmt., citing 42 Pa.C.S.A. § 9545(a). Vacating Appellant’s sentence by granting an oral request for collateral relief violates both the PCRA statute and the procedural rules governing collateral proceedings.

In addition, pertinent case law precluded Appellant from seeking collateral relief during the pendency of his direct appeal. It is well-settled that a petitioner who seeks collateral relief may only file a PCRA petition after he “has waived or exhausted his direct appeal rights.” Commonwealth v. Williams, 2019 PA Super 225, at *1 (Pa. Super. 2019), quoting Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000). “If a petition is filed while a direct appeal is pending, the PCRA court should dismiss it without prejudice towards the petitioner's right to file a petition once his direct appeal rights have been exhausted.” Williams, supra. The pendency

-6-

J-S27003-19

of the instant appeal thus barred Appellant from seeking collateral relief before the trial court.

As a final matter, Appellant did not follow proper procedures in attempting to discontinue this appeal through oral application before the trial court on September 25, 2018. Discontinuances of appeals pending before the Superior Court are governed by Pa.R.A.P. 1973. See Superior Court Operating Procedure § 65.23. In relevant part, Rule 1973 provides:

Rule 1973. Discontinuance

(b) Filing of discontinuance.--If an appeal has not been docketed, the appeal may be discontinued in the lower court. Otherwise all papers relating to the discontinuance shall be filed in the appellate court and the appellate prothonotary shall give written notice of the discontinuance in person or by first class mail to the prothonotary or clerk of the lower court or to the clerk of the government unit, to the persons named in the proof of service accompanying the appeal or other matter and to the Administrative Office. If an appeal has been docketed in the appellate court, the prothonotary or clerk of the lower court or the clerk of the government unit shall not accept a praecipe to discontinue the action until it has received notice from the appellate court prothonotary or certification of counsel that all pending appeals in the action have been discontinued.

Pa.R.A.P. 1973.

The certified record in this case confirms that our prothonotary’s office forwarded docketing notices and statements to the trial court, Appellant, and the Commonwealth on February 21, 2018. Since this appeal was docketed well in advance of the proceedings before the trial court on September 25, 2018, all paperwork pertaining to a discontinuance of this appeal needed to be filed in this Court. Since this procedure was not followed, the events before

-7-

J-S27003-19

the trial court on September 25, 2018 had no impact on the pendency of this appeal. Thus, for each of the foregoing reasons, we reject counsel’s request to remand this matter to the trial court.

We turn now to Appellant’s last two issues in which he challenges the admission of certain testimony and raises claims of prosecutorial misconduct. In reviewing both of these claims, we have carefully examined the submissions of the parties, the opinion of the trial court, and the certified record on appeal. Based upon our review, we conclude that Appellant’s claims are without merit and that the trial court has adequately and accurately addressed the merits of these issues. For this reason, we shall adopt the trial court’s analysis as our own. The parties are hereby directed to attach a copy of the trial court’s opinion to all future filings concerning our disposition of this appeal.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/10/2019

-8-

Circulated 08/30/2019 02 31 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY i PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA, CC No. '2016-8291

v.

MILTON MORGAN,

Defendant. OPINION

BETH .A. LAZZARA, JUDGE Court of Common Pleas

Copies Sent To:

Mike W. Streily, Esq. Office of the District Attorney 401 Courthousa Pittsburgh, PA 15219

t.L.. Diana Stavroulakis, Esq. 262 Elm Court · · Pittsburgh, PA 15237

App. C

iN THE COURT DF COMMON PLEA·S:'OF A�LEGHEN.Y COUNTY, PENNSYLVANIA

cor0MONWEALTH OF PENN�YLVANIA, CR·IMINAL DiVISlON

vs. CC No ..2016-'82�J1

MILTON MORGAN,

Defendant.

OPINION

This is a direct appeal from the judgment cit sentence entered on December 2-1.,

·2017 "·follow.irig a jury .trial that took place between August 301 2017 and September 1 ,

-2017. The Defendant was charqee with·four:(4) counts of Possesslon with Intent to

Deliver a Controlled Substance (35 Pa; C.S.A. §'78b-1 l3.('aH3D}), two (2) counts of

Possession ota Oontrolleo Substance .(:�5 PEL C.S.A.§.780-113.(�}(16)), and one:(1)-

'count of-Criminal Use of a Oornmurucatlcn Facility {l8 Pa: C_$·.A.. §.7�12(�)). At the

conclusion ot trial, '.the Defe.f)dant. was convicted. bf all six -drug�relateo chames and

acquitted of the §7512·char9e. Sentencing was.deterred to allow for the preparation of

a Pre .. sentence Report ("PSR").

On December 21, 20·17, the· Defendant received an aggr:·e_gate· sentence ct three.

{3) to six (.6) years otImprlsonment. He· .recejVed45Tdays of credit.tor time served. No

post-sentence motion was filed. On January 18, 20181 the Defendant tileda prose

.,-------- ·----..--·-···--------··----·--,---------------------- .. _ ·-----·------· ····-------··--···-- .. .... ··-···---·

Notice of Appeal. On February 13, 2018, appe II ate counsel was appointed to represent

the Defendant. Counsel was ordered to fife. a Concise Statement of Errors Complained

of on Appeal f'Condse Statement") pursuant to Pa. R .A. P. 1925 nq later than March 6,

2010. On February 1sJ201a, the Defendant filed another pr¢ seAmended Notice of

Appeal, which created duplicate dockets at rheSuperior Court of Pennsylvania. (See

Docket Numbers 236WDA 2018 and 253 WDA 2018}. The appeal at Docket No. 253

WDA 2018.w.cts discontinued on March 14, 201.8.

After re.ceiving two (2) extenslonst of time, the Defendant filed a timely Concise

Statement on June 29, 2018, raising the following. two (2}. issues for review:

1.) The Trial Oourterred in denying the defense objection to Detective Oe'Femple's testimony that the C'.I. identified Milton Morgan from a picture, when the C.L did not testify; and the out of court statement was clearly hearsay.

2.) The Assistant Distriet.Attorney committed prcsecutorial misconduct during closing argument by stating that drug dealers like Morgan kill C.l.'s and stating the C.l.'s friend died from what Morgan did, when neither statement was Supported by any facts in evidence, and both statements were meant to cast Morgan in a negative light and inf lame the jury, thereby depriving Morgan of his constitutionally guaranteed ri.ght to a fair trial and due process. · · (Concise Statement; filed June 29., 2018, pp. 2-3). .

The Defendant's allegations of error on appeal are without merit, The court

re$pectfully requests that the Defendant's convictions be upheld for the reasons that

f9!10W.

1 The Defendant was awaiting transcripts.

2 •...•••...•.........• ·······-----------·-·······--···--- -----··-···--..···-····· ·· ····--···-··· ·· ·· ···-·-····------

I. FACTUAL BACKGROUND

On May 4, . 2016,. Detective.Thomas DeTemple of the Aliegheny .. County Po.Hee.

Department>- Narcotics and Vice Unitwas contacted by a confidential informant ("Cl")

who relayed that an individual named Milton Morgan was selling heroin Jn Mt. Oliver and

the Carrick neighborhood ot the City ot Pittsburgh. (Jury Trial Transcript fTT"), 8/30/17:.

9/1/17, pp. 65-66, 70-71, 128-29, 191 ). Detective. DeTemple used the Defendant's.

name andvarious databases toretrieve a picture of the Defendant in order to confirm

his identity. (TT. pp. 71-72, 78-79, f!:)2). Detective DeTemple showed the picture to the

GI, and the Cl positively identified the individual in the photograph as the Defendant'

from whom he/she had previously purchased narcotics. (TT,. pp. 189-90, 192-93).

Qn May 5, 2016; Detective Thomas DeTemple and his partner, Detective Gary Romano, met with the Cl, and together they arranged fora controlled buy to take place

between the Cl and the Defendant. (lT, pp. 71,. zs-so. 82, 89·100, 160·61, 1:85). The Cl called the Defendant's cellphone number and the Defendant agreed to sell the Cl a

bundle. of heroin. which equals 1 o stamp t>.ag s of heroin. (TT, pp. 80·82, 111 , 1 62, 1 72.

177). The pre-arranged location for the transaction originally was the McDona,ld's

restaurant on Brownsville Road in Mt. Oliver. and the agreed upon purchase price f pr

the bundle of heroin was $80: (lT, pp. 82, 90, 92, 11 ·1, 1711 180)..

---------·-····-·-···--·· · ·-· ·---··· ·----·----··---··---- ·--- -------------

After the Cl arranged the drug transaction wttrrthe Defendant over the phone, the

detectives immediately set L:IP survetllance around the Mc_bonald'$ restaurant and

readied themselves for the controlled.buy. (n, pp .. 90, 92, 99, 162·, 171). 'Prior to the

transaction, the, detectives searched the Cl :for contraband with neqatlve result's. (TT,

pp. 9l-·9,2, 1.b6'·, l-12,_ 16.9.).. The detectives Suppli�d the QLw.it.h sso to official funds to purchase the ·bundle of heroin. (TT, pp. 92, 111 �12). Detective De'Tempte conducted

surveillance from hfs SUV. while Detective Homa no lett the vehicle to observe the

transaction from insid.e of the restaurantwhite posinqas a patron. (Ji. 'pp. 90-,_93,_ 162-)_. The Cl wentto.theparklnq lot of the restaurant to meetthe Defendant. .(TT,. p. 90, 162), .

. After a-few minutes, the c returned .to Detective De'Temple'svehic!e, lntorming the detective that the location. of the transaction h�d been changed to the 100 block of

Margaret Street, which· was diagonally across: from the McDonald;s parking lot (TT, pp;

90-9·1, 94;1'62-63, 172-7·3). ·The deteetlvss reqrouped and set up.survelllance atthe

new location. ·(TT, pp -". 91,,94; 163, '1'73). Detective Romano and the GI walked to·

Margaret Street together, and .Oetect_ive DeTemple remained inside of his vehicle. (TT I

pp. 9·1, .94-, 163-64, 173�74).

A few minutes tater, at .aoproxlmately 4·:30 p.m:.• the· Detendantwas observed walkingdown Margaret Street:towards the, Cl. (TT, pp. 95, 9S, 1.13, 122, 165, , 74)-. Detective DeT ernpte was parked approximately 1 o-i 5 feet aw�y from th.e Defendant, pnd there was nothi11Q obstructinq hls view of the Defendant, tbe CI or transaction,

which took place in broad day.light. (TT pp. ·95; 111_-13, 122, 182). Detective 1

DeTemple was able to, positively identity the' Defendant.because he had the: 4

------------·-···--- .......- - ., .. ,, ......;..., _

Defendant's photoqtaph with him in his vehtcle; (TT, pp. 1291 183, 190) . The

detectives sawthe CJ cross the streetto meet With the Defendant. (IT, .PP'- .95,! 1:65,.

1 ·15�76).. Detective DeTemple sa.w the Cl hand the Defendant the $SO. of l)nited States

currency, and then he saw the Defendant' hand the Cl a knotted plastic baggif3, '(IT,

pp.:96, i 1'2-13 132, l7fi). The Cl then walked back towards Detective Ro.rrl'ano while 1

the Detenoanttorneo around and walke.d back down Marga.'ret Street in th� direction

from which he came. (TT, pp; 96 n:3}:. The. GI had the· ba9. in his/her hands the. entire·

time, and the Cl never placed his/her hands· ih' any.pocket. (Tl', p. 166), The Cl

immediately t:i·anded the .knottedplastic baggie to Detective Romano. after approaching·

him ..(TT, pp. ·16fr-66,1T?).

Once the Defendant left'the locatton of the trarisaction, Detective DeTempie

drove.down Margaret Street, followinqthe Defendant ·in orderto determine it't'he

Defendant was goin� to enter' into a residence, which could have led to. the issuance· of

a searctrwarrant tor any such residenee, (lT, . pp.. 97, 1t3-l4, 128-29.,. 1671180.).

Detecti.ve De'Ternple passed the: Defendant twlce, and he did not. see the. Defendant

erttsr any house, '(TI, pp. 97, 121 ). Detective Oe'Temple then stopped ms.survetnance

of the oetenoant arid returnedto the location of. Detective Rorn�no and the .Cl. (TT, pp.

98·, 1 �t. 1"68}..

5 --·-······· - -----·--- -------------------·-·-··-·-"·-·----·"'"'•"·----..---..--·-·····

Dwring:the entire controlled transaction, which took no more thari twenty (2'0). minutes from the time ·o.f the Cl's phone :call 'to the. Defendant to the. actual exch�rige, the detectives never Jost sightof the CL (TT,. pp. 98 ..99, 112., 1 l4-i.6,i'31, 166, 1-83-84) . .Follo\ving the transaction; theCl was searched a.galn,. at wt,·ich ·time the detectives otscoverec.tnarthe plastic baggie that the Defendant had sold to the ·ci contained onty

five (5) baqsot heroin/fentanyLas opposed to· th'e fen (1 o) stamp bags of heroin that -was.originally agreed upon. -(TT, pp.:96,.9-9, ·t21, 127, 166.:68, 177, rso), ·Each ot tne. five. (5) stamp bags contained .withi.n the.tied sandwich bag contained a.:stamp ot the

word "Deebo" imprinted wltn qreen ink. (IT, pp, 9$, l-1 i, 1.67),. Based on his trait,lng and experience, Detective De'Temple beueved that the Defendant had interrtionally

"shorted" the Cl. (TT, pp. 115,.17) .. Detective Detemple· was cdntidenrthat the Cl did: notsteatany of the druqsthat had justbeen purchased. {TT, pp, lOQ,. rts .. 17} ..

The detectives took the. druqs back to their office, packages thedruqs .as :evidence, and sent the Package to the Ailegheny C.ounty Me�:Hc�I Examiner's Office for

analvsts. ,(TI, pp. 1 oo-m., 168). The Defendant was arrested ort June �B, 2016, approximately six (6) weeks after the transaction. The detectives waited th is amount of·

time, despite the fact that.the detectives knew the identity of the Defendant to protect

the roentity of the Cl. They did not '?J.ant it to be obvious to the Detendanttbat his arrest was the result of a controlled buy With the CI. (IT •. pp. 1 04-05, 130).

G

·---------------·------·------------·

n, DlSCUS·SION:

A-: The detense objection tQ: Deteetlve DeT.emple's testimony r·e·garcJfng 'the Defendant.-'s photograph was properly overruled because the Defenc;tant opened the door to· the introduction of that evtdence..

It is well-settled that "[t]he admission �f evidence is within thesound dtscrettonot

the. trial court and wiil be reversed only.upon a. showing that tne trlalcourt clearly .abused ·its dtscretlon." Cor.nmo·nwealth v.· C\.:1itchell, 902 A.2d. 430; 452 (Pa. 2006). "An

abuse of discretion is not merely an error of judgm1;!'nt,. 1;>1i ts rather the. overriding. or

misapplication of the law, or the exercise of Judgmerit that is·rnanifestly unreasonable;

or the resultot bias, prejudice, ill�Will or partlanty, as· shown by the evidence-of record."

Commonwealth v .. Cameron, 780. A,2d. 688., 6$2. (P_a;. Supe.r·. 2001).

The Defendant's tirstalleqatior, oferror ls without.merit because. the Defendant'

opened the door lo trreverytestimony jhat hehad initially objected to at the beginning

�f trial .. To·.be·$u.re, Detective Oe'Iemple nevertestttled thar'the "C.I. identified Miltori

Morgar, from · � plcture" during his initial testimony on direct examination. (Concise

Statement, p. 2}. Rath·er, as can be gleaned bY thesequence ot.everits relative to this

testlrnony during the trial, Defendarrt'sown counsel set thestaqetcr the introduction of

the now complained of evidence.

··-···-····-···----··----------- --·-·--------··-·· · ··---

Detective DeTemple's direct testimony made clear that he received lnformatio:n

from a confidential informant tci", 1} ·.fhat the Defendant was selling Meroin in Mt. Oliver and the ·carrick neighborhood of the City of Phtsburqh. (TT, p. 71 ).. After receiving this

information, the detective testifled that he used 'Various databases" to locate a picture offheDefendant. {TT, p, 72}. The: Defendant's photograph was marked as

Commonwealth's Exhibit 1. (I'd.). : As the Commonwealth . . was. presenting. the

photoqjaph to Detective De'Iempte, the D.efendant objected "to the aornlssron of the testimony-as itrelates to that particularphoto." {TT, p:. 72-73). The objection was. based on the-assumption that the detective was:going totestlty that the Cl identified the ·nefend.�nt'from·tt:ie photograph. (TT, pp. 73-76). This court.aqreed that it wouldbe maomisslbte hearsay for the. detective.to testify thatthe Cl' identified the Defendant frorn the photograph since the Cl was not available to testify at trlal. (TT, pp. 74, 76). Accordingly, .the court spe.cifically barred the Cornmor.i'Ne�lth from. eliciting any such ide.ntification testimony! and the Commonwealth instructed the. detective to not rnentlon any photoqraphtc identification made. bythe Cl. (Ti, pp. 74,.77)�.

Wheri his direct testimony resumed, Detective De'Temple, id.e.ntified Cornmcnweatth's' Ex.hjbit r 8$ "$. photograph [of the D�fe.ndant]lhc;1t I recovered during my investigation/ (TT. p. 78).. The detective .thert made an in-court 'identification of the Defendant. (TT,, pp. 78-79). When .asked how he knew"thafthe. photo contalnec in Cornmonwealth's Extii.bif 1 was a picture of the Defendant, the.detective replled.."] know

it's a picture 'Of tile Defendant because {of] my ability of .si'ght. ·r can. see that the photo is of Mitton Morgan. The investiqatlon I did also Concludes that." (TT, p, 79). Detective.

DaTemple men testified that he usec the pho.to�_faPh·d.ur.ih_g the course of his

investiqation to contlrrn the Defendant's identity; {TT, pp. 72, 7.9) ..

The only other time the photograph was mentioned during Detective DeTemple".s

inltial testtrnony was dUri,ng cross-exarnlnatlon; wheri defense counselasked Detective

D�Temple the· following question: . "[s]o in 'that ten· seconds. [of the -drug· . transaction] .you

made a positive identification of [the Defendant] based on 'what the Cl fold you? ls·th?t

fair to s$,y?" (TI, p·. '129), The detective replied:

No .. No. As he approached the vehlcle .1 was on the same sid.e ot the si.dewalk. lt-was qufte evident to rne, I had the photo next tome. It was quite evident to me that this was Mr. Motgan approaching the contldentla! informant. As they did the transaction I reconffrmed my observations. As· ,.. passed hirn on 1'A'.o occasions I triple affirmed my observations that it was Mr. Morgan. {fT, p. t29} (emphasis· added):

It.is quite clew that at no point during his, initial testimony did Detect.Ive

De'I'ernple testify: thatthe Cl ITJ$.de 9' photographJc identification otthe Defendant.

The entirety of the detective's testimony i�gardihg the photograph Was that. .it was.

retneved rrorn aoataoase-atter his conversatlon With the Cl and that it wasused

:du.ring the course pf. hlsinvestlqatlon, (TT_, pp. 78-79;l29).. The Commonwealth

never asked .any questions reg_�rdin� whetherthe photoqrapn was shownto -the

Cl. or whether the Cl identified the Defendant from the photqgrapht:.and the

detective never offered any such testimony at that time. (Tr, .PP· 72�79). ··-·-· ---······---·----------..------------------- --- ---------··

. However, during the re-cross-exarninatiorr of-a differentdet�ctive on ·the case, Detective Gary Rom.a.no, defense counsel pursu:ed a line· of questioning regarding the.

Cl's identification of the Defendant from the, photograph: outing trns.questlcning,

defense counsel elicited tne. v.e.ry testimony to Whi·ch he tictd objep.ted.ear"lier; {TT, pp.

1 84�8.5). Pefens_e: counsel .speclfteally.asked Detective. Romano whether Detective

DeT$mpl_e· showed the Defendant's photoqraprrto the Cl -during their briefing and

whether the Cl ·identified the Defendant from ,he photograph. ·(TT; pp. 184-es).

Oeteetlve Romano testified that he did riot knowwnetner the- Cl identifred- the. Def�ndant

frorn'the picture, b_utthat he did ultimately become. awarethatthe .Cl identffre·d the

Defendant. (TT, p. 185}

.As a direct result of the Defendant's line of questlenmq on the issue ofthe

photoqraphic ldentitlcation, questioning that essentially "opened the door" to the Cl's

photoqraphlc rderitif.i�ation; the Commonwealth informed the· court that it wished to recall Detective DeTemple to "talk aoout the identification onthe photo," (TT, p. 187),

Defense. counsel specifically stated that he was "not ot;>jecting" to that testimony, {TT; p,

l87L The Commonwealth clannedthat \ts examination of Detective De'Ternple would

include questions about''.how the c·1 would be-able to identitt' the Defendant, and

defense counsel objected at that point {TT, p .. l87)·. The COL,Jrt substantially restricted

the scope of the Commonwealth's examination, ruling thatthe Common.wealth could

only "fecal! [Det�ctive De Temple] to ask him if he showed the picture and if-"[the Cl]

·identifie<) the picture as Milton Morqan." {TTi p. 188;). Defens.e counsel made no.further

objection after the court's ruling. (TT., pp. 188-89).

iO

•N ...___._....... ------- ----·-------------------------·-·-------·-

·when betectfv.e DeTetnple was recalled to the stand) the Commonwealth

presented 11im with th·t;l Defendant's photograph (Oornmonweallh's-Exhiblt i).and asked

whether he had shown· that particular picture to the er, (TT, pp. 189:..90). The detective

confirmed that he ·did., in tact, show the photograph Cl., and tre also. stated that the C[

identined the person in.the pnotooraprr as the Defendant. (1T, pp. l89-90). �etective

neTemple also testified that the Cl identified the Defendant as someone from whom

he/sh·e had prevlouslypurchasec drugs. (TT. p. 1.90). Detective Oe'Ternple further

testified that the photograph was the .same one that he had next to him in his vehicle

during the controlled buy and that he had used that same, photo to confirm. the

Defendant's identity· during. the transactlon. "(TT, p. 1,90). There were· no defense

objections to any of tt:, is tesnm ony elicited during the di rect. exam i nat lo n of the-detective on recall. (TT, pp; 189.,91). On cross-examination durmqthe recall testrmony, defense

counsel asked questions 'about the .detalts of the ldentiflcatlon and 'did not make any

further objections to Detective Oe'Ternple's 'testimony regardi�g the. G l's photographic.

ldenttttcatlon bf the Defendant (TI, pp. 191-�4).

Against-thfs backdrop, rt.ls clear that the Defendant's first allegation is completely

lacking Jn merit. This court ir:,Jfi�Hy ruled i,n th$ Defendant's favor and precluded the:

Commonwealth. from ·.eliciting .. any testimony which related to 'the Cl's photographic

.i.dentific:;ition .of the Defendant. However, the Defendant later "opened 'the door" to the

very testimony he had initially sought-to bar.. Further, he did notlodqe any objections to 1t atthat time. Even.after he had opened the door to the adrntsslonot this evidence, this

court suostantialfy limited the scope ·of the testimony· regarding the:photographic ..............----··-··-····----- ----------------------' ----- -···-··----.. ······----···-··--· identitication. Accordingly, the Defendant falls �e.11 short of proving that this court. abused its discrefiorrin allowi'ng the Commonwealth to clarify certain details. regarding .the.,Photograph after the Detendant's own.quesnonlnq paveotne waytor the. introduction of that evlcence.

To the extent.that the Defendant's first contention also.implicates the detective's testimony in which he related that th.� Cl named the Detendant.as aheroin dealer, th.e. court notes thatcounsel did not raise a timely objection to that aspect of the detective's testimony.. (IT, pp, 71.-.7.2); The objection thatwas made was to the "admission oMhe testlrnonyas it relates to that particular photo" oeoause the "person .who made the: identification .of thatphoto is unavailable to. substantlate making the. identitlcafion ...... (TI, pp. 72-73). 'As part of his argument, counsel then later realizedhe never made an objection to the Defendant's name and attempted to place theobjectlcn on the record well after the.jury had already heard that evidence .. {IT, pp. 7·5-78).

·Counsel Is -required·to,makeotime/y·object1ons. Pa ..H. .E; ·103(a). Faifu.re to do so prevents the court.from restricting inadinls�fhl.e evidence Iromthe hearing of the.jury and waives the cornplalntaboutme adrnlssion of thatevidence. S�e f>q,.R.A.P. 302(a). Here, the. objection was not timely made, and, therefore, should be.deerned waived. In any event, even �·counsel had made.a timely objectionfo the Cl providing the Detendant's name to the detectlve.tne court wo·u.ld ha.v¢ overruled the testimony because it would have been admissible under the course .of conduct exception to

·----·----·-··-·---··-..--.. --, hearsay: C.om'tTionwealth v. Cruz; 5.65� 414 A.2d 1032, l035 (Pa. 'f980)' ("(A]n out-of-court statement offered. to. explain a course of conduct is nor hearsay."), The fact ·that the Cl named. the. DefendaJ1t: as a drug dealer was not being offered for the truth of the matter, but rather ta . explair, the actions that the detectives later took as a· resutt of their conversation with the Cl.

Moreover, even if this court erred in aflowing the testimony In which the Cl oarned the Detendantasa heroin dealer, theadmlsslon 9f that testimony was harmless 'error: C9.mmonvy�alth v. M_itchell� 902 A.2d 4��. 452 (Pa .. 2006) ("(A].n erroneous ruling by a trial court on an evldentlary issue does not require us to grant relietwhere-the error is harmless:"). ".An error Will be-, deemed harmless where the .appeuate court cencludes beyond a reasonable. doubt that the error could not have .co11tritnJted to the verdict. If there is a reasonabte .Possibility that.the error may have contrlbuted to the verdict; it is· not harmless. In reaching that conclusion, th.a revlewinq court will find· an error harmless where the uncontradlcted evidence of gl!ilt ls-overwhelminq, so that :by comparison the error is insiqniticant." Mitchell; supra, 452 (quoting Commonwealth v. Isaac Mitch'e111 8�9

A;2d 202, 214-,15 (P.a. 2003), ThsCornmonwealth bearstheburden ot demonstratlnq harmless error.icommonweanh v. Mayhue, 63.9 A.2d 42·1, 43'3 (Pa. 1994).

Indeed, eventhouqh the Cl named the Detendant as a druq-dealer, the fact remains that a .Gtintro.lled buy was conducted tollowing the detective's receipt of this information during Which the Delendant was directly observed by the officers selling the

Cl a prearranged arnount.ot'herotri at a.prearranped .. location for a prearranged sum of

money, Notwithstaru;iing the fact that.the ofticers had received the Defendant's name

from a third party who did· not testify attnal, they conducted a further in.ve;stigatib'n into

the matter and soechtcanyobserveo the Defendant engage in a cfrug sale, which renders the inadmissible hearsay harmless. Ct. Commohwealth v. be11t. 837 A.2d ·571:

(Pa, Super. ·2003) _(holdihff.that the police ofticer's testimony that he·haq obtained a

photograph of the defendant based upon a conversation lrrwntchthe defendant's stster

identified him b.y name astne person fleeing the scene ottne crime constituted

inadmissible hearsay). Unlike. the situation in Deht1 supta.!the challenqed statementdid

not. in and of itse.lf; lead tc'the Defendant's arrest. Rather, itmerely initiated an

investlqation that .culrntnated in a controlled buy where officers were able to specitically

corroboratethe statement' with observed criminal activity. Based on these. facts, the

challenged statements were not "likely to be understood by the jury. as themselves proving t,he elements ot the crime for whi.ch the defendant was Ch?r�ed.". D�nt, supre. at .579 (¢itihg Commonwealth. v. Palsa, 555 A._2.Q.808 (Pa, '1989).

Accordingly, tor arr of the reasons just stated; the Defendant's f_irst aueqatien of.

error on appeal should be.rejected as merlttessbecause he cannot demonstrate that

this court abused its discretion. with respectto it.s ruling on thephotographlc

_i_d.eq.tification issue.

14 _____.... --------·-----..-· --- ---------------------

B, The �llegation of prosecutorlal misconouct.tswatveo for-lack of objection at the fimeot trial·.. However; even if waiver ts riot tound,:the Issue lacks me_rit. because the comments; w.er�- fairly based .on the evidence·. and . the tnterences, that properly could be drawn therefrom,

The Defendant's second alleqation df error on appeal. should be, deemed waived

because the De1end�nt never raised an objection to the· Commonwealth's statements.

that weremadedurtnq closing arquments, (TT, pp. 231:-35, 280). ,;The tauuretoralse.a

contemporaneous objection to a prosecutor's comment at tnal Waives any claim of error ·ans1rig·trom tnecomment." Common.weatth·v. Powell, 956 A.2d 406, 423 (Pa. 2008)

(ctting P.a:R.A.P. 302(a), which_ states that "[i]s.st,Je$ not raised in tn:e lo\Ner court are

waived and cannot be raised for tha tlrst'time.. on appeal"): Conirh"onwealth v. Myers,

489 A2d ·900, 906 (Pa. $LJper. 1985) ("Failure to make aum·a1y objection to allegedly improperconduct of the prosecutor acts .as a waiver ofthe claim of error."):

Even if the O.efe_noant_'s .claim is not deemed Waived, it nevertheless lacks merit.

The-standardsqoverninqchaltenqes to statements· by the prosecutor are.well-settled:

A prosecutor has· r.:easonable-latitud·e.-dUrin·g his dosing argument to advocate his case! respond to argu_mei')tS of oppostnq counsel, and fairly present the Commonwealth's version. of ttreevidence tothe july A chauenqed statement by aprosecutor must.be evaluated in-the contextIn which it wasmade. Not every Intemperate or. improper remark mandates the granting of a new trial. Reversible error occurs. only when the LJnavofdable ·effect of the challeng.ed comments would prejudlce the jurors and form in their minds a fixed bias ano. hostility toward. the .defendant such that the jurors could not weigh the evidence and render atrue verdict.

Qqmmonw.E3alth v. A,li, 10 A.3d .. 2,B2 (citing Commonweafth v. Cooper, 941 A.2d 6p5; 6B.B (20.07) (cltanons omitted). Prosecutorial remarks are not objectionable it the 15

-·----·---------------··· · -------------------·--------·--

remarks . "were . b.?S.<;?Q. on the .evidence.or proper· ·. inferences therefrom .... .. '\

Commonwealth v. Jones; 811 A.2.d 994, 1006 ·(Pa. 2002). However, the prosecutor should not "misstate· the ..svloence o·r rnislead the fury·as,to the ·inferenc·e it maydraw." ,9omrrionwealth v .. Shain, 426 A.2d 58S, 591-tJ2 (Pa. 1-9.81).

Contrary to. the Defenoant'seontentlon, theCommonwealth's statements during closlnq arqurnentswere based on the· evidence and the proper lnterencesthat could

have been drawn therefrom. With.respect to the comment about how "druqdealers like Morgan kill C.l.'s."'t.he court notes that the jury heard evidence about the importance of rnalntainlnq the. confidenflality ofthe informants. in orderto keep them safe and prevent their dealers. from. ascertafning their identity. (TT,. pp. 70·, 94.f 104-05.,. 231.).

Indeed, durin� his testimony, OetectiveDe'Temple testified that me "whole ldea beninc the confldentlalintormantis the confidentiality. Keep them sate, .l.<¢E;?P them hopefulty out of the picture." (lT; pp. 70, 94} -. The testimony about the purposesot �elayi.n_g· the arrest.ot a oruq-dealer also. relayed to the jury thata Cl's safety could be· compromised ifdrug dealers· were able to ascertain the Identlty of· the individual(s) who set them up. To complete ttre picture.there.was tesnmony about the .use ofa C.IJ and. there was certainly ample evidence, presented throuqhthe testimony regardin� the circumstances ·of tt).e. controned QtJYi·ttiat the Defendant was a.druq-dealer. Ac.cordinf!ly; the Commonwealth's statements that druq-deaters like the oeterrcant pose athreatto the safety otcontidentiai lnformants wasa taircornment based .on the. *17 eytd·ence that 'had been presented to the jury and the rnterences·tha:t the jurors could draw from that evidence, The .Commonwealth did not misstate the evidence or mislead the· jury as to the· evidence in any. way, and the comment was ·1arge!y in response to the Defendant's closing argument whereih defense counsel suqqestedto the jury that the. ,;biggest hole" in the case was the absence of th$ informant attnal and ·the Defenoant's inability toquestlon the informant aboutwhat happened. (TT, pp; 211-12, -221, 227).

Th!JS, the Commonwealth's comment was madeJn the context otexptalnlnq the- importance -of-mainta1riing the secret idehtity of- the informant in order to keep him/he-r

alive and sateslnce the defense made theabsence ot the. GI at triat anissue. (TT. pp. 230-32.).

With respect.to the Oornrncnwealth's comment-about howthe "CL's trtend died from what Morqan did," D.etective D�Temple testitledthat it was his· beliet thatthe Cl was motivated to engage ·in the controlled buy with the Defendant because the Cl's friend had died from druqs that were purchased from the Defendant and that the GI wanted to prevent another death from occurrinq. (TT.1 pp. 109-1 O). De.�ective DeTernple also testified that heroin andfentanyl are dangerous and lethal substances, (TT, pp·. ·to2-. ·04). Accordingly, the'jury was presented with evidence that supported the Cornmonwealth's comment during ·closing arqument. The court further' notes .that any prejudice. which may have resulted from these comments w.as minimal-in light ofthe· very consistent arid credible testimony·. regafdir,g·th.e controlled purchase that the Oetendant erigaged in wi1h the Cl-.. As has been stated .earlier, law enf orcement officers directly-observed. theDefendant en:gage··in a prearranqed drug transacncn. at a prearranged time and place, tor a prearranged sum of money, wherein he uftlmately -sokf 5 stamp baqs ·of herclnand fentanyl toa Cl. The detectlves-testltieo numerous times that b.et�een theboth of them never fast sight of the Cl, anomey retrieved the drugs fr.om the Cl immediately atter'thetransaction was. over; Thus, given the strength ofth:� svidence presented.aqainst the Defendant at trial, the Commonwealth's comment h_a:d lrttle,:if any, prejudicia! .effect on the- Defendant, ·11t CONCLUSfON

For all the reasons. just stated. the Oetendant's contentions on appeal.are without merit. Thls court did not abuse its discretion at trial, The alleged presecutorial misconduct was waived for failure to object, and any clairn of prejudice therefrom is meritless irlany event.

BY THE COURT:

ta