Loading...
HomeMy WebLinkAboutCP-21-CR-0001660-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1660-2008 : V. : CHARGE: 1. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A CONTROLLED : SUBSTANCE; 2. UNLAWFUL POSSESSION : OF CONTROLLED SUBSTANCE; : 3. UNLAWFUL POSSESSION OF DRUG : PARAPHERNALIA : RALPH CHARLES MINIUM : OTN: L417433-2 : AFFIANT: DET. ADAM SHOPE IN RE: OPINION PURUSANT TO Pa. R.A.P. 1925 Ebert, J., December 17, 2009 – On May 19, 2009, a jury convicted the Defendant, Ralph Charles Minium, of all the above charges. Defendant filed a timely appeal and a concise statement of errors complained of on appeal. These consisted of the following: 1. It was error for the Defendant to be convicted based upon evidence that was challenged in a suppression motion, when there was no decision entered on the suppression motion before the trial. 2. The evidence seized upon execution of a search warrant should have been suppressed and should not have been admitted at trial because there was not a sufficient showing in the search warrant affidavit of probable cause to justify the nighttime search that took place. Statement of Facts On May 21, 2008, Detective Kell of the Cumberland County Drug Task Force and a confidential informant, who lived next door to the Defendant, made arrangements to 1 call the Defendant to make a cocaine purchase. After the informant placed the call, Detective Kell and the informant waited in the back of informant’s residence for 1 Notes of Testimony 12. 2 Defendant to deliver the cocaine. After the transaction took place, Detectives Shope, McNair, Kell, and others executed a search warrant on Defendant’s residence at 10:31 p.m. During the search, detectives found various quantities of cocaine in different places within the residence. Defendant was arrested and charged with possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia. Discussion The Defendant filed an omnibus pre-trial motion in this case nunc pro tunc, on January 2, 2009. The motion did include a motion to suppress evidence which was seized during the search of the Defendant’s home which took place at 10:31 p.m. on May 21, 2008. The Magisterial District Judge had approved a nighttime search based on Detective Shope’s sworn representation in the affidavit of probable cause for the search warrant which stated: “We are asking for a night search warrant due to your affiant’s training and belief that the drugs and money will be gone before morning. Due to the fact of recent controlled purchases and the amount of traffic all times of day and night, it is believed that the documented money will not be present in the morning.” (Commonwealth’s Exhibit No. 7) Hearing on the Defendant’s omnibus pre-trial motion, nunc pro tunc, was held before the Honorable Kevin A. Hess, on Friday, March 27, 2009. The hearing was very brief and consisted of a dialogue between counsel and the Court. No testimony from any witnesses was presented. In regard to the suppression issue, Judge Hess stated the following: “And it seems to me if there is a suppression issue, it is a four corner search warrant issue, just whatever the search 2 N.T. 15. 2 warrant says is what it says. I mean, Miss Mehrtens-Carlin, I am sure, agrees, that she can’t expand on the probable cause today. (Transcript of proceedings, of March 27, 2009, p. 7) The entire transcript of this proceeding was only nine pages long. At the conclusion of the hearing, the Court did not rule on the omnibus pre-trial motion and it appears that a decision on the omnibus pre-trial motion to suppress nunc pro tunc, was never entered on the record. It should be noted that Judge Hess has filed a Joining Opinion in this case in which he clearly outlines his perspective of what transpired at the hearing in regard to the Defendant’s omnibus pre-trial motion. As noted in the Joining Opinion, Judge Hess found that the Defendant’s suppression motion was clearly without merit. In any regard, the matter proceeded to a two-day jury trial which was held on May 18 – 19, 2009. This Court has reviewed the entire transcript of the jury trial. At no time did the Defendant object to the introduction of the evidence which was seized from the Defendant’s home during the search of May 21, 2008. In fact, counsel did not object to the introduction of any of the Commonwealth’s 19 exhibits. The only motion dealt with by this Court before the beginning of testimony on the first day of trial was the Commonwealth’s motion in limine regarding introduction into evidence of one of the uncharged drug buys as proof of the Defendant’s motive and/or intent. The Court allowed the Commonwealth to use this evidence of the one drug buy 3 and gave a cautionary instruction as to how the jury should consider such evidence. The Defendant has not raised the issue of this ruling on appeal. It is clearly established on the record of this trial that the Defendant did not advise the Court at any time that his omnibus pre-trial motion nunc pro tunc had not 3 N.T. 14-15 3 been ruled upon by Judge Hess. In fact, on May 7, 2009, at the pre-trial conference, President Judge Bayley entered an order of court which stated as follows: th AND NOW, this 7 day of May, 2009, the parties having indicated that the case is ready for trial, the Defendant is directed to appear for trial on May 18, 2009, at 9:00 a.m. and remain until excused. This order of Court was signed and acknowledged by both the Defendant and the Defendant’s attorney. The trial proceeded and evidence from the search was introduced without objection. It is well established that absent a contemporaneous objection, an issue is not properly preserved on appeal. Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004). Having not objected to the evidence during the course of the trial, the Defendant cannot legitimately claim that this Court erred in allowing introduction of the evidence of the search. Even though the Defendant had ample time to request a ruling from Judge Hess from the date of the suppression hearing on March 27, 2009, to the start of the trial on May 18, 2009, he stood silent. At the pre-trial conference where this issue could have clearly been raised, Defendant indicated the case was ready for trial. Accordingly, he cannot now complain that certain evidence to which he did not object was admitted at trial. There was no trial error. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Taylor Andrews, Esquire Attorney for the Defendant bas 4